Singheshwar Chowdhry vs Parbal Mandal

James, J.—The suit out of which this appeal arises was instituted for ejectment of an under raiyat after service of notice u/s 49, Bengal Tenancy Act. The under raiyat pleaded that he had acquired occupancy rights, and this point was decided in his favour by Babu Ananta Nath Banerji, Munsif of Purnea, who dismissed the suit. The plaintiff appealed to the District Judge, who affirmed the decision of the Munsif, and he has now come up in second appeal to the High court.

It appears that the plaintiff purchased the holding in 1905, but he was not able to enter into possession because the defendant was already there, and indeed it appears that the defendant''s tenancy came into existence long before that time. In 1917 the plaintiff instituted a suit for recovery of possession of the land, which was dismissed by the Munsif of Purnea on the grounds that there was nothing to show that the plaintiff had ever been in has possession of the property, and that there was no evidence the service of notice u/s 49, Bengal Tenancy Act.

The plaintiff appealed from that decision, with the result that the Subordinate Judge of Purnea gave the plain tiff a declaration of his title as raiyat, but rejected his claim to khas possession on the ground that he has failed td obtain actual possession of the land. One of his reasons for this finding was that since the under-raiyat was entered in the record-of-rights as shikmi dakhaldar he would rot have been likely to yield procession without resistance. The plaintiff then caused notice td be served u/s 49, Bengal Tenancy Act.

He again sued for ejectment of the defendant in 1922, but that suit was dismissed on the ground that it was premature, being instituted before the end of the agricultural year. The plaintiff then instituted the suit out of which this present appeal arises The defendant claimed that he enjoyed occupancy rights, and that there was a local custom or usage by which under raiyats acquired such rights. The Munsif of Purnea found that the local custom by which under raiyats acquired occupancy rights had been proved and that the defendant had right of occupancy. He found further that the notice u/s 49, Bengal Tenancy Act, was not in proper form, and on these grounds he dismissed the suit. The learned district Judge affirmed his decision in a somewhat dubious manner, holding that the presumption of correctness attaching to the entry in the record-of-rights, taken with the defendant''s evidence, might be regarded as proving the custom, but he went on to remark that if the entry in the record-of-rights were disregarded, and if the onus lay upon the defendant to prove the local custom, it would have to be conceded that the evidence produced by him was not sufficient to prove the existence of any custom. Hi accepted the view of the learned Munsif, that the notice served on the defendant was defective in form.

Mr. S.N. Bose argues that no presumption of correctness u/s 103-B, Bengal Tenancy Act, can be held to attach to the entry in the finally published record-of-rights in the case, because that entry must have been based on a finding of the existence of a local custom, and the revenue officers preparing a record-of-rights under Chap. 10, Bengal Tenancy Act, have no authority to make a record of local custom.

In support of his argument, he relies upon the ruling in the case of Suresh Chandra Rai v. Sitaram Singh [1920] 57 I.C. 126. In that case it was decided by Mr. Justice Das that the revenue officer had no power to record as part of the record-of-rights the existence of any local custom that may affect lands generally, since village customs are not among the particulars which have to be recorded u/s 102, Bengal Tenancy Act. Mr. Justice Das held, therefore, that when the record-of-rights contained entries of such local customs in the remarks column of the khatians as special incidents of each particular tenancy in the village, these entries should not be presumed to be correct u/s 103B although they might be used as evidence u/s 35, Evidence Act.

A second decision cited by Mr. S.N. Base is that in the case of Debi Dayal Singh and Others Vs. Mt. Gango Kuer and Others, , in which it was held, following the decision of Mr. Justice Dai in Suresh Chandra Rai v. Sitaram Singh [1920] 57 I.C. 126, that an entry in the record-of-rights at variance with the common law in respect of rights to trees would not carry with it the presumption of correctness u/s 103-B, Bengal Tenancy Act, because it must have been based on a finding of local custom. The decision in the latter case was reversed in L.P.A. No 28 of 1925, but there is nothing in the decision of the Letters Patent appeal whit can be taken as expressing disapproval of the decision of Mr. Justice Das in the case of Suresh Chandra Rai v. Sitaram Sihgh [1920] 57 I.C. 126.

It cannot be assumed as a matter of course that the, entry of shikmi dakhaldar in the record-of-rights must have followed on a decision of the revenue officer on the question of local custom, but the defendant, apart from his reliance upon the entry in the record-of-rights now founds his case upon local custom and Mr. S.N. Bose argues that it should be presumed that he always did so. Now, although it may be conceded that a revenue officer may be travelling out of his sphere when he records as a special incident of every tenancy in that village a local custom by which special remissions may be made in time of flood as was held by Mr. Justice Das in the case of Suresh Chandra Rai v. Sitaram Singh [1920] 57 I.C. 126, that decision should, I think, be read with reference to the particular facts of the case then under discussion, and it should not, I would respectfully submit, be extended to support a general rule that no incident of a tenancy, how vitally if may affect the status of a tenant, can be properly recorded u/s 102(h), Bengal Tenancy Act, if the right or the liability recorded is based on the existence of a local custom.

Where occupancy rights may be obtained by a tenant as a result of local usage or by any other means, the revenue officers whose duty it is to frame the record-of-rights must, I think, record as an incident of the tenancy the fact that the tenant possesses such rights. Revenue officers are required u/s 102 to enter the class to which the tenant belongs, the situation and a quantity of his land, the rent payable by him, the mode in which that rent has been fixed and special conditions and incidents if any of the tenancy If the under-tenant enjoys occupancy rights, that is to say, if he is free from liability to eviction u/s 49, Bengal Tenancy Act, and if he enjoys special privileges u/s 113 of the Act with regard to the period during which a settled rent cannot be enhanced, a record-of-rights which omits to mention this special incident of the tenancy, that the under-raiyat enjoys occupancy rights, would be certainly defective in most important particulars,

Mr. Sambhu Saran cites as authority for the view that the entry of shikmi dakhildar, in a case where the claim to the right is based on the existence of a local custom, carries with it the presumption of correctness u/s 103-B, Bengal Tenancy Act, is afforded by the decision in the case of Gopal Mandal v. Tapai Sankari [1919] 46 Cal. 43. though the arguments in that case appear to have been confined to the question of whether a right of occupancy in an under-raiyat was inconsistent with the provisions of the Bengal Tenancy. Act. In that case the under-raiyat''s claim to occupancy right was based on local custom, and his status -was entered in the record-of-right a as shikmi dakhildar. The Divisional Bench of the Calcutta High court, after finding that the existence of the occupancy right was not inconsistent with the provisions of the Bengal Tenancy Act, affirmed the decisions of the lower appellate court on the finding of fact that the under-raiyat had occupancy rights, and in doing so they observed that the decision ''which they affirmed was a decision on a question based chiefly, on the fact that the presumption of correctness attaching to the entry in the record-o�-rights had not been rebutted.

If in the present case the under-raiyat had based his claim on the existence of a local custom, I think that it would have been the duty of the revenue officers charged with the duty of preparing the record to ascertain whether such a local custom or usage existed, and to make the entry of status or to refuse it, in accordance with their decision on that question.

But here as in the case of Debi Dayal Singh and Others Vs. Mt. Gango Kuer and Others, there is nothing to indicate that the record was based on a finding regarding custom. It appears from the judgment of the learned District Judge that the under-raiyat had been in occupation of the holding long before the date of the survey and settlement operations in the Purnea District, and that he has laid out capital on his holding. The draft record-of-rights must have been prepared in the presence of the raiyat and the head landlord, and we cannot assume as a matter of course that the entry of this man''s right of occupancy was based on the existence of a custom affecting all under-raiyats.

For these reasons, I consider that the is no reason for holding that the provisions of Section 103-B, Bengal Tenancy Act, do not govern this particular entry. In that view of the matter, the learned District Judge rightly treated the entry in the khatian as carrying the statutory presumption of correctness, and if in his opinion that presumption brought such a reinforcement to the value of the defendant''s evidence of local custom that he was able to affirm the decision of the learned Munsif on this point, that was a view of the evidence which as a Judge of fact he was entitled to take, and there does not appear to be any ground for interfering with this finding in second appeal.

Mr. S.N. Bose also takes exception to the finding of the learned District Judge affirming the finding of the trial Court that the notice u/s 49, Bengal Tenancy Act, was defective in form. No special form has been prescribed for notice u/s 49 and the notice served in this" case is in clear terms a notice to quit. The terms of the notice could not have been misunderstood and this is all that is required for a valid notice u/s 49, Bengal Tenancy Act. Authority for this view is afforded by the decision in the case of Harifullah Gani v. Benode Behary Mondol [1913] 17 C.W.N. 932, but since the plaintiff''s suit must fail on the findings of fact, this point is of comparatively little importance.

The decree of the lower Court is affirmed, and the appeal is dismissed with costs.