Smt. Indumati Devi vs Thag Raut

This is a plaintiff''s appeal against the judgment of Ahmad, J. in Second Appeal No. 954 of 1959 maintaining the concurrent decisions of two lower Courts, dismissing the plaintiff''s suit for eviction of the defendant from survey plots Nos. 1161, 1163 and 1175 of khata No. 145 in village Jigna Gopal in Saran District. In the last settlement operations of that district, the lands were admittedly entered in the name of the predecessor-in-interest of the plaintiff, who was given a separate khata, but, in remarks'' column, the lands were described as jagir khidmati. The defendant''s predecessor-in-interest was also recorded in the remarks'' column as being in possession of the plots on payment of manhunda rent to the plaintiff''s predecessor-in-interest. The suit for eviction was resisted mainly on the ground that, in consequence of the amendment made in the year 1938 by the Bihar Tenancy (Amendment) Act, the defendant has now acquired occupancy rights by virtue of Section 48-C, having held the lands continuously as a under raiyat in the village for more than the stipulated period of twelve years.

The concurrent finding of the courts below that the defendant was in possession for more than twelve years as an under raiyat was not challenged, and the sole point of law taken by Mr. Thakur Prasad, both here and before the learned single Judge, was that, inasmuch as the plaintiff''s status was itself that of a mere service-tenure-holder, Section 181 of the Bihar Tenancy Act would override the provisions of Section 48-C, and that an under-tenant under a service-tenure-holder cannot acquire occupancy right in view of the opening words of Section 181 to the effect that "Nothing in this Act shall affect any incident of a ghatwali or other service-tenure".

It is, however, conceded, quite properly, that the plaintiff''s status and that of her predecessor-in-interest was that of a raiyat. It was, however, urged that, as the holding was in the nature of a service-tenure, the plaintiff could not acquire occupancy status. For the purpose of this appeal, it is not necessary to decide the question whether Section 181 would apply to a raiyat who is exempted from payment of rent to the landlord on account of certain services rendered by him to the latter. Even if it is assumed that Section 181 would apply to such a class of raiyats, nevertheless the further question which arises for consideration is whether an under-raiyat of such a raiyat cannot be conferred occupancy status by the Legislature by a special enactment. Once it is conceded that the plaintiff''s status is that of a raiyat, the defendant, who was admittedly cultivating the lands under her and paying her manhunda rent, becomes an under-raiyat, as defined in Clause (3) of Section 4 of the Bihar Tenancy Act.

The Legislature, with the full knowledge of the existence of Section 181 of the Bihar Tenancy Act, inserted special Section 48-C, in 1938, conferring occupancy status on all under-raiyats provided they are in possession of the land continuously for not less than twelve years. Section 48-C does not contain any limiting words to the effect that the benefit of occupancy status will be available to an under-raiyat only if his landlord himself is capable of acquiring occupancy status. In the absence of any such limiting words on a construction of Section 48-C, along with Section 181 of that Act, one must hold that such a statutory provision made to protect a particular class of tenants must be given full effect notwithstanding the limitations that may arise so far as the rights of the landlords of those tenants are concerned.

Mr. Thakur Prasad, however, referred to the Privy Council decision in AIR 1934 5 (Privy Council) and Mritwjoy Roy Chowdhry and Another Vs. Kenatullah Narya and Others where there are some observations to show that under-tenants of service-tenures cannot acquire occupancy rights; but those decisions deal with the law as it stood at that time, and they have no application whatsoever when we have to construe a new enactment, viz,, Section 48C, inserted in the Act for the first time in 1938. Mr. Thakur Prasad, quite fairly, did not challenge the competence of the Legislature to confer occupancy rights on all classes of under-raiyats, irrespective of whether their immediate landlords, viz. the raiyats, suffer from any disability as regards acquisition of occupancy rights.

For these reasons, we must hold that the courts were justified in holding that the defendant had acquired a right of occupancy, and that he could not be evicted. The appeal is dismissed with costs.