Suraj Mohan Thakur and Another vs Ganesh Prasad Mandar and Another

Chatterji, J.—This appeal arises out of a suit for recovery of possession of the disputed lands which admittedly appertain to the zamindari of the plaintiffs. The plaintiffs leased out the lands to the father of defendant 1 by a registered deed dated 23rd August 1918 for a period of seven years. The plaintiffs'' case is that on the expiry of the term of that lease they gave a notice to the lessee to vacate the land. Thereupon he vacated it and the plaintiffs subsequently settled, it with one Maithili Mandar by a registered lease dated 21st July 1927 for a period of five years. Dispute regarding possession arose between the new lessee and the father of defendant 1 with the result that there was a proceeding u/s 145, Criminal P.C., which was decided in favour of the father of defendant 1 on 18th June 1928. Later, it is said, the plaintiffs returned the money which was paid by the subsequent lessee. The father of defendant 1 having died, defendant 1 has been in possession of the lands. The plaintiffs brought the suit to eject him and in the alternative for recovery of arrears of rent for the period 1327 to 1331. Defendant 1 contested the suit on the ground that under the lease his father became the raiyat of the disputed land and he had never surrendered possession. He pleaded that his father and he acquired occupancy right in the land.

The trial Court held that the lease of 1918 being a mustajiri lease, the father of defendant 1 was a tenure-holder and upon the expiry of the term of the lease he was liable to be evicted. On appeal by defendant 1, the learned Subordinate Judge reversed the Munsif''s decision and held upon a construction of the lease that it was a raiyati lease and defendant 1 and his father having been in possession for more than twelve years acquired occupancy right. Hence this second appeal by the plaintiffs.

The decision of this appeal depends upon the interpretation of the lease of 1918 (Ex. 3). The relevant passages of that lease are as follows:

(I have taken) the mustajiri settlement of the entire mauza Azmpur.... I, the executant, shall cultivate the lands of the said village and shall...keep the entire lands of the said village under cultivation and shall not make any sort of settlement, whether nakdi or bhaoli with any other tenant and shall not allow the lands to remain fallow.

Reading the lease as a whole, there is in my mind no room for doubt whatever that the object of the lease was that the lessee should himself cultivate the lands and should never settle them with any tenant. That being so, if we turn to Section 5, Clause (4), Ben. Ten. Act which serves as a guide in determining the question whether in the case of a particular lease the lessee is a tenure-holder or a raiyat and which lays down that the purpose of the tenancy is the determining factor, it seem to be clear that the position of the father of defendant 1 under the lease in question was that of a raiyat and not a tenure-holder. Much stress was laid upon the fact that in the lease itself the word mustajiri was used and reference was made to the Guide and Glossary to the Survey and Settlement Operations in the Patna and Bhagalpur Divisions (1907) in which at p. 18 the expression "mustajiri" is stated to mean "farming lease--practically equivalent to thika."

It was also argued that soon after the expiry of the lease the tenant himself made an application to the plaintiffs praying for a re-settlement of the lands at a lower rent. To my mind these considerations are quite irrelevant. The dominant factor is the purpose of the tenancy and as I have shown from the terms of the lease the purpose of the tenancy was to create a raiyati lease.

I therefore think that the decision of the lower Appellate Court is right and the appeal must be dismissed with costs.

Fazl Ali, J.

I agree.