Sm. Jaduprava Mitra and Another vs Rai Bato Behari and Others

Ramaswami, J.—The decision of this appeal involves the proper construction of Section 22, Sub-section (2), Bihar Tenancy Act. In the suit out of which this appeal arises the plaintiffs claimed produce rent with respect to 16.77 acres of land, khata No. 12, situated in village Sidhna. The plaintiffs stated that they held eight annas share of the milk at and defendants 1 to 8 held the remaining share. Defendants 1 to 3, 11 and 12 contested the suit. They alleged that defendants 1 to 8, cosharer proprietors, had purchased the holding in execution of a rent decree against defendant 12, Mt Kulawanti Kuer, the original tenant. After the purchase defendants 1 to 8 settled 927 acres with defendants 10 and 11. The latter further urged that the plaintiffs were not entitled to realis rent from them, that they had already divided the produce with defendants 1 to 8 The learned Munsif held that the plaintiffs were not entitled to any relief against defendants 10 and 11. He granted the plaintiffs a money decree against defendants 1 to 8. The Subordinate Judge affirmed the decree of the Munsif.

Defendants 1 and 3 have instituted the present appeal. On their behalf it was argued before us that the lower Courts had erroneously decreed the suit in full against defendants 1 to 8. It was contended that defendants 10 and 11 who had taken settlement from defendants 1 to 8 should under the statute be deemed to be tenants of the entire body of landlords. It was pointed out that defendants 10 and 11 were previously settled raiyats of the village and so became occupancy raiyats as soon as settlement was concluded. It was urged that the suit should have been decreed in part against defendants 1 to 8 and in part against defendants 10 and 11 for the proportionate area in their respective possession. The critical question in this appeal is whether defendants 10 and 11 should be deemed to be tenan''s of the plaintiffs and whether they are liable to pay them a proportionate share of rent. The answer to this question depends upon proper construction of Section 22(2), Bihar Tenancy Act.

The Sub-section as amended in 1907 is as follows:

If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, he shall be entitled to hold the land subject to the payment to his correctors or joint permanent tenure-holders of the phares of the rent which may be from time to time payable to them; and if such transferee sub-lets the land to a third person such third person shall be deemed to be a tenure-holder or a raiyat as the case may be, in respect of the land.

The illustration to the Sub-section is:

A. a cosharer landlord, purchases the occupancy holding of a raiyat X. A is entitled himself to hold the land on payment to his c sharers of the shares of the tent payable to them in respect of the holdings. A, sub-lets the land to Y, who takes it for the purpose of establishing tenants on it; Y becomes a tenure-belder in respect of the land. Or A sublets it to Z, who takes it for the purpose of cultivating it himself; Z becomes a raiyat in respect of the land.

Learned Counsel for respondent relied on Kirtya Nand Sinha v. Ram Lal AIR 1926 Pat. 580. In this case there were two bodies of landlords, one the Banaili Raj, and the other Srinagar Raj. The Banaili Raj acquired the status u/s 22(2) in respect of a1 out 355 bighas, which it nettled with certain other parties. A partition then took place between Banaili Raj and Srinagar Raj by which a part of the 155 bighas was allotted to the Banaili Raj and the rest to brinagar Raj. The Srinagar Ruj sued one of the original tenants and obtained a decree which they attempted to execute. Ranaili Raj then instituted a suit for declaration that the party whom Srinagar Raj had sued had no connexion with the land, that Srinagar Raj was entitled only to the proportionate rent of the 81 bighas of land. The two lower Courts held that after the settlement the Banaili Raj had no further interest, that the settled became raiyats under all the proprietors, that the "peculiar status" which Banaili Raj obtained u/s 22(2), Bihar Tenancy Act, had ceased. In second appeal Ross J. held that the peculiar status conferred by Section 22(2) still continued notwithstanding the settlement. He also held that even after partition between the cosharers, the status of the purchaser cosharer in the part of the holding allotted to the other cosharers was not affected.

But the decision so far as it related to the transferee cosharer on partition has been impliedly overruled by the Full Bench decision in Sunder Mall v. Lachmi Tewari AIR 1940 Pat. 467. The decision in Kirtya Nand Sinha v. Ram Lal AIR 1926 Pat. 580 was based on Jhapsi Sao v. Mt. Bibi Aliman AIR 1926 Pat. 263, Nandkishore Singh v. Mathura Sahu AIR 1922 Pat. 193. Basudeo Narain v. Radha Kishan AIR 1922 Pat. 62 and Lala Bambahadur Lal v. Mt. Gungora Kuar AIR 1925 Pat. 547. The Full Bench made reference to these decisions but preferred not to follow Jhapsi Sao v. Mt. Bibi Aliman AIR 1926 Pat. 263.

In Sunder Mall v. Lachmi Tewari AIR 1940 Pat. 467 the facts were as follows. The plaintiffs sued for recovery of possession of plot No. 196 in touzi No. 24363. The plot was, originally recorded as kasht of Rikhari in touzi No. 941. In 1897 Narsingh Tewari, ancestor of defendants, purchased it from Bhikhari. At that time Narsingh was a cosharer landlord of the touzi. Subsequently there was partition of the touzi and plot No. 196 was allotted to the new touzi No. 24363 which was patti of another cosharer landlord Sarjug Singh. The cosharers were placed in possession of the new pattis u/s 94, Estates Partition Act. The plaintiffs purchased Sarjug''s patti in June 1924. They alleged that they obtained delivery of possession but were dispossessed by the plaintiffs a month later. The plaintiffs claim was resisted by the defendants on the ground that they were entitled to hold possession by reason of Section 22(2), Bihar Tenancy Act. The Full Bench held that the cosharer landlord who purchased the occupancy right of the land was not a tenant under the other cosharers; nor could he be viewed as occupying the status of the tenant under himself and other cosharers as landlords. The word rent in Section 22(2) was used in the sense of compensation payable to other, cosharers for use and occupation of the land by the purchasing cosharer. It was not used in the sense defined in Section 3(5) as descriptive of the nature of the payment made by the purchasing cosharer to his other cosharers. Agarwala J (now Hon''ble Sir C.M. Agarwala) felt that there was nothing in Section 22(2) to suggest that a cosharer was entitled to retain possession after the land which he had purchased had been allotted to the patti of another cosharer by partition.

It is convenient at this stage to examine the construction of the relevant provision of statute. Section 22(2) enacts that

if such a transferee sublets the land to a third person, such third person shall be deemed to be a tenure-holder or a raiyat, as the case may be, in respect of the land.

We were invited to hold (by learned Counsel for respondent) that the phrase "shall be deemed to be a raiyat" ought to be construed as "shall be deemed to be a raiyat vis a vis the purchasing co-proprietor but not vis-a-vis the remaining co-proprietors." In our opinion such a construction would be unreasonable and not in accordance with the policy and object of the statute. The original Section 22(2)(as it stood before 1907) was:

If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, it shall cease to exist; but nothing In this sub section shall prejudicislly affect the right of any third person.

The amended section is

if the occupancy right in transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, he shall be entitled to hold the land subject to the payment to his co-proprietors or joint permanent tenure holders of the shares of tie rent which may be from time to time payable to them; and if such transferee sublets the land to a third person, such third person shall be deemed to be a tenure-holder or a raiyat, as the case may be in respect of the land.

The object of the Legislature in enacting Section 22(2) was to prevent the accrual of occupancy right in land in possession of proprietors and co proprietors. It was based on the maxim nemo potest esse tenens et dominus". It was obviously intended that the purchasing cosharer should not himself acquire an occupancy right or by subletting bar the acquisition of raiyati rights by sublessees. If a restricted meaning is given to the word "raiyat" as argued for respondent, the policy and object of the statute would be frustrated. Should there be partition of the estate or a re-arrangement between co-proprietors and the land sublet was under the partition or re-arrangement allotted to another co-proprietor the sub-lessee would be in a position of trespasser and be liable to ejectment. In our opinion, there is no warrant for construing this section in this fashion. There is no reason why having once been deemed to be a raiyat within the meaning defined in the Act (which of course in actual fact he is not) a sub-lessee would cease to be deemed a raiyat and should become a trespasser merely because as a result of a subsequent partition the co-proprietor who had sub-let the land to him ceases to be his landlord and another co-proprietor by operation of law becomes his landlord instead. Let us assume a hypothetical state of facts. A and B are cosharer landlords. A purchases the occupancy holding of a raiyat X in execution of a rent decree obtained by him against X and settler it with a raiyat c. Subsequently there is collectorate partition and the holding is allotted to B. B claims possession over the holding but a resists the claim. In view of Sunder Mall v. Lachmi Tewari AIR 1940 Pat. 467, B is entitled to recover possession of the holding which has been allotted to his fate. If the restricted construction is adopted, b could treat o as his trespasser and eject him. But it the construction we adopt is correct, B could only treat c as his tenant and claim rent from him.

Our view that sub-lessee would be a "raiyat" under the whole body of landlords is supported by certain authorities. In Emamuddin v. Mahomed Rashidul Huq. AIR 1949 Pat. 398 Roe and Coutts JJ, stated as follows:

We may assume, for the purpose of the case, that the plaintiff''s story, us given in the plaint, is the correct story, that he is a cosharer proprietor and acquired these land in the manner contemplated by Section 22, Ben. Ten. Act; but he has also let out the land in the manner contemplated by Section 22(2), and, that being so, the person to whom he has let out the land becomes a raiyat upon the land, and as a raiyat, when their he has a right of occupancy or not, he cannot be ejected except upon conditions prescribed in the Bengal Tenancy Act, none of which has been fulfilled.

In Gopi Singh v. Jagdeo Singh AIR 1927 Pat. 172, Dawson Miller C.J. observed that a lessee from purchasing co-proprietor might acquire occupancy right after twelve years'' possession. In that case X, a co-sharer proprietor, had purchased raiyati jote of certain tenants and remained in cultivating possession paying a proportionate part of the rent to the cosharers. In 1913 a partition case was instituted between all the co-proprietors and shortly after the filing of the partition case X sold his proprietary interest to Y who by mutual arrangement allowed X to held the said raiyati jote land. In 1918 when the final partition took place, the land was treated as bakasht and allotted to the takhta of two other cosharers, A and B, who ejected X, whereupon X brought suits for recovery of possession. The Court held that X was not bound by the treatment of the land in dispute as bakasht in the partition proceedings. It was further held that the arrangement between X and Y which allowed X to remain in possession of the land had effect of creation of a sub-lease by Y in favour of X, who became a tenants of the disputed land u/s 22(2), Bihar Tenancy Act. The Court observed that X may acquire occupancy right after twelve years'' possession.

In an unreported case, S.A. 124 of 1945, Imam J. followed the decision in Kirtya Nand Sinha v. Ram Lal AIR 1926 Pat. 580 and held that the sub-lessee was not a necessary, party to the rent suit and the purchasing co-proprietor was liable for the rent of the land purchased by him from the original tenant. Das J. agreed but he based his decision on the-ground that there was nothing to show that the settlement was bona fide or that the other co-sharers accepted the sub-lease as tenant.

This review of authorities supports our opinion that on a proper construction of Section 22(2) a person who takes settlement from the purchasing cosharer becomes raiyat under the whole body of landlords provided the settlement is-made bona fide.

In the present case, however, we are faced with the difficulty that defendants 1 to 8 had settled not the whole but only a portion of the holding they had purchased. The matter is not free from doubt but I venture to think that Section 22(2) applies only if the purchasing co-proprietor sublets the entire land to a third person, who will then be deemed to be a raiyat in respect of it. The language of neither Section 22(2) nor its illustration warrants the view that the purchasing proprietor could split the holding into fractions and by separate sub-leases create smaller holdings.

In Anand Prasad Singh v. Medni Prasad Singh AIR 1944 Pat. 313 Shearer J. had taken ant apparently different view. In that case the plaintiffs first party were owners of three gandas interest in touzi No. 1070. They acquired certain occupancy holdings either by purchase or exchange. They subsequently settled part of lands with the plaintiffs second party, who claimed that they were settled raiyats and so acquired right of occupancy as soon as they were let into possession of the lands in suit. Later, there was a partition between the co-proprietors and the land in suit was allotted not to the plaintiffs first party but to defendants first party who were proprietors of touzi No. 1103. In the partition the land was stated as bakasht and after being put in possession of the new estate the defendants first party settled the land with defendants second party. There was struggle for possession between plaintiffs second party on the one hand and the defendants second party on the other. There was a proceeding u/s 145, Criminal P.C., and eventually the plaintiffs second party relinquished'' possession and undertook to file a civil suit. In the suit which was ultimately instituted the plaintiffs second party claimed possession of the land. In decreeing their claim Shearer J. held that a. settled raiyat to whom a co-sharer landlord who had purchased occupancy holding, had sublet the land, or any portion of the land comprised in the holding, at once acquired right of occupancy in it.

In that case no specific argument was presented whether Section 22(2) could apply only if a part of holding was sublet, and the construction of the section was not looked at from that aspect. The case also may be distinguished on the ground that there had been a partition and re-allotment of the land to a different touzi. Miss G.B. Solano and Others Vs. Maharaja Kumari Umeshwari Koer, is an important case, the ratio decidendi of which supports the view I have taken. In that case, facts were that a co-sharer mokarraridar had after purchasing occupancy holdings inducted tenants on the lands and realised higher rents than these which used to he paid by occupancy tenants from whom purchases had been made. The other co-sharer landlord claimed her share of the higher rents so realised. But Fazl Ali J. (as he then was) and Davle J. held that on a proper construction of Section 22(2) of the Act the rent referred to was. the rent of the original occupancy holding and not the rent payable in respect of the tenancies created afterwards by purchasing co-sharer for parts of the holdings. The learned Judges considered that the plaintiff was not entitled to sue for or realise the higher rate of rent.

In the present case the lower Courts have concurrently found that defendants 10 and 11 proved that they had divided the produce with defendants 1 to 8 for the years in suit. The plaintiffs did not claim that defendants 10 and 11 ought to pay the rent direct. But the appeal is instituted on behalf of defendants 1 and 3, purchasing co-proprietors, who made the settlement. Having received their share of usufruct, defendants 1 to s cannot now be heard to say that defendants 10 and 11 should again pay rent to plaintiffs for the proportionate area in their possession. If the ratio of Miss G.B. Solano and Others Vs. Maharaja Kumari Umeshwari Koer, is correct, the appellants have been rightly held in the present case to be liable to pay the entire compensation to the plaintiffs. I would affirm the decree of the lower Court and dismiss this appeal with costs.

Manohar Lall, J.

At one time I was inclined to propose that this appeal should be referred to the learned Chief Justice so that the difficult question may be decided by a larger Bench, but having regard to the facts of the present case, it is unnecessary to harass the parties any further.

The facts found are that defendants 1 to 8, the eight, annas co-sharer landlords, purchased the holding in execution of a rent decree against the original recorded tenant, and after purchase they settled 9.27 acres of that holding with defendants 10 to 11 and kept the remaining area in their own possession. The remaining eight annas co-sharer landlords instituted the suit giving rise to this appeal for recovery of their, share of the produce for the years 1849 and 1350 Fasli in respect of 26 bighas and 18 dhurs of land which were purchased by defendants 1 to 8 as stated already. The co-sharer defendants pleaded that they were in possession only of 7.50 acres of land and the remaining 9.27 acres of land has been settled with defendants 10 and 11 and, therefore, the co-sharer defendants are not liable for the plaintiff''s share of the produce of the entire land. Defendants 10 and 11 pleaded that they are not liable to pay any rent to the plaintiff as there is no relationship of landlord and tenants between them and the plaintiff, and for the years in suit they, alleged that they have actually divided the hakmi share with defendants 1 to 8. The Courts below have concurrently granted a money decree to the plaintiffs with respect to their share against the co-sharer defendants. They have also held that the defendants who have taken settlement from defendants 1 to 8 are not liable to pay anything to the plaintiffs.

The real question in controversy before us was as to the applicability of Section 22(2), Bihar Tenancy Act. A large number of cases have been cited before us. Many of them have been reviewed by my learned brother in the judgment which he has just delivered. In my opinion, the question is concluded by two Division Bench decisions of this Court.

Ross J. in delivering the judgment of the Division Bench in Kirtya Nand Sinha v. Ram Lal AIR 1926 Pat. 580 observed at p. 138:

The question is not free from difficulty, but it is important to observe the exact language of Section 22(2). It is not enacted that if the transferee sublets the land to a third person, such person shall be a tenure-holder or ft raiyat, as the case may be in respect of the land, but that such person shall be deemed to be a tenure-holder or a raiyat; that is to say, the section itself recognises the relationship as artificial and, by implication suggests that, by making such a settlement, the transferee is not a landlord, but that the peculiar statue conferred upon him by the section as held in Lala Bambhadur Lal v. Mt. Gungora Kuar AIR 1925 Pat. 547 still continues notwithstanding the settlement. Nor is it apparent on principle why the interest of the transferee co-sharer should be affected merely by his making a settlement with a tenant. It has been held in many decisions in this Court that he is entitled to held the land which he has acquired, after partition, and I do not see how it can make any difference to this right that he has settled it with a person who is deemed to be a raiyat. The position I3 certainly anomalous; but the anomaly is the creation of Section 22(2).

In view of the decision of the Full Bench in Sunder Mall v. Lachmi Tewari AIR 1940 Pat. 467, I am not prepared to held that these observations are correct with regard to the position after partition. But it is unnecessary to consider that aspect because in the present case there was no partition between the co-sharer landlords.

Miss G.B. Solano and Others Vs. Maharaja Kumari Umeshwari Koer, proceeds upon the view that so long as there is no partition amongst the co-sharers, the co sharer purchaser is lisble to pay compensate on to his co-sharers calculated at the rate of rent payable by the tenant of the occupancy holding at the time of the purchase and not the rent payable in respect of the tenancy which has been created by the co-sharer purchaser. A number of cases have been considered in this judgment and it has been approved by the Full Bench in Sunder Mall v. Lachmi Tewari AIR 1940 Pat. 467.

A contrary view appears to have been taken by Shearer J. in Anand Prasad Singh v. Medni Prasad Singh AIR 1944 Pat. 313, but I am not hampered by that decision because in that case the learned Judges were considering the position of the tenant after the partition had taken place. Shearer J. considered the argument of Mr. S.N. Bose at p. 310 that the words "shall be deemed to be a raiyat" should be construed as "shall be deemed to be a raiyat vis-a-vis the co-proprietor, who has sub-let the land, but not vis-a-vis the remaining co-proprietors," and did not accept the argument as sound. But it is to be observed that the learned Judge was considering the soundness of the argument in so far as the sublessee would become a trespasser as the result of a subsequent partition.

I propose to examine the matter on general principles. The relevant portion of Section 22(2) has already been quoted and enacts that if the transferee sublets the land to a third person, such third person shall be deemed to be a tenure-holder or a raiyat. Ross J. referred to this artificial treatment of the sub-lessee as a raiyat in Kirtya Nand Sinha v. Ram Lal AIR 1926 Pat. 580:

"Now when a person is ''deemed to be'' something, the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were": per Viscount Dunedin in delivering the judgment of the Beard in AIR 1930 54 (Privy Council) .

We must, therefore, assume that the sub-lessee must be treated as if he were a raiyat. But raiyat under whom? Miss G.B. Solano and Others Vs. Maharaja Kumari Umeshwari Koer, clearly decides that notwithstanding the settlement by the co sharer landlord with a new sub-lessee at a higher rent, the co-sharer landlords are entitled to claim from the other co sharers their share of the rent not at the rate at which the co-sharer had made the settlement but under the old rate. This suggests to my mind that even though the sub-lessee is to be treated as a raiyat, the other co sharer landlords cannot look to him for payment of rent and for an obvious reason. The purchasing co-sharer landlord still enjoys the land but now by receiving rent from a person with whom they have settled it, Under that provisions of Section 116, Evidence Act the sub-lessee is estopped from denyimg the title of his landlord namely the person who has settled the land with him, and, therefore, he is bound to pay the entire rent so settled to the co-sharer landlord, who has settled the land with him and he cannot be heard to say that the per on who settled the land with him is only a co-sharer and so entitled to receive his share of the rent only.

In the present case the facts are even more complicated, namely that the co sharer landlord is in possess on of a portion of the holding which he had purchased, and the sub-lessee is in possession of another portion, and further that the co-sharer landlord has been fully paid the share of the produce by the sub-lessee. The suit for compensation was, therefore, rightly decreed against the co-sharer landlords. The defendant sub-lessee was not a necessary party in this case This was the few expressed by Imam J. in second appeal No. 124 of 1945, but in view of the finding arrived at by Das J. who was a member of the Division Bench in that case, that the settlement of the land was not bona fide and the evidence did not disclose the-circumstances in which the settlement was effected, this decision must be treated as a decision of a single Judge who followed the observations of Ross J. in Kritya Nand Sinha v. Ram Lal AIR 1926 Pat. 580.

I desire to make it clear that I am not considering the effect of a partition between the co-sharer landlords upon the rights of the sub-lessee of a part or on a portion of the holding settled with him by the original co-sharer whose purchase took place alter 1907.

Meredith J. in Anand Prasad Singh v. Medni Prasad Singh AIR 1944 Pat. 313 has thought it fit to sound a note of dissent from the decision of the Full Bench in Sunder Mall v. Lachmi Tewari AIR 1940 Pat. 467. He appears to suggest that the Full Bench has not considered a large number of cases which are noticed by the learned Judge in his judgment and this inclines him to doubt the correctness of the Full Bench decision. With the utmost respect to the learned Judge, many of these cases were cited before us, but they were not noticed in the judgment because we were dealing with a situation before the year 1907.

In Basudeo Narain v. Radha Kishan AIR 1922 Pat. 62 Das J., observed at p. 24 that be did not desire to express any opinion on the question as to what the position would be under the Amending Act of 107. Similarly the Full Bench judgment was careful not to ex-press any opinion as to, the position after the Amending Act of 1907 and, therefore, it was unnecessary to notice many of the decisions referred to by Meredith J. For these reasons, I agree that this appeal must be dismissed with coats.