Suryamal Saraf vs P. Sriram Naidu and Others

Rowland, J.—This appeal by the plaintiff arises out of a suit to declare that his status is not that of darchandnadar but that of an under-raiyat, to declare that the. orders passed during the preparation of the current survey Record of Eights are without jurisdiction and erroneous in so far as-they treat the plaintiff as darchandnadar and have fixed a rent of Rs. 437-6-0 for the property in suit in his hands. He-holds under the defendants who are sons of P. Veriah Naidu. They are entered as istimrari chandnadars'' and rent of their tenancy is fixed at Bs. 104-5-0. Plaintiff claims that he is not a sub-chandnadar but an under-raiyat and that u/s 56, Orissa Tenancy Act, the rent payable by him cannot exceed the rent of the raiyat under whom he holds by more than 50 per cent. The Courts below hate concurred in dismissing the suit on the view that the tenancy which the plaintiff has acquired was from its inception a tenancy for the purpose of erecting pakka buildings including a ricemill, etc., and therefore not an agricultural tenancy. So it is said that the plaintiff cannot claim to be an under-raiyat.

Now the first contention advanced by Mr. Chaterji is that the expression "under-raiyats" has been defined in Section 4(3) of the Act as meaning "tenants holding, whether immediately or mediately, under raiyats." The definition by its terms applies to the tenants falling within the description irrespective of the purpose for which the under, raiyati tenancy was created. Therefore for the purpose of determining whether the plaintiff is an under-raiyat what we have to see is not the purpose for which his tenancy was created but the question whether his immediate landlord was a raiyat. In deciding this question the Court is to have regard in accordance with the definition in Section 5(2) primarily to the question whether the right to hold the land was acquired by the alleged raiyat for the purpose of cultivation. Unfortunately the Courts have not directly considered this question; but the evidence bearing on it has been referred to in the judgments.

The tenancy appears to have been created by a lease (Ex-D) dated 27th December 1865. This was a perpetual lease. Its purpose was not stated. The annual rent was Rs. 37.2-0 and the lessee was apparently a European named Burgess. There is evidence that Mr. Burgess was not an agriculturist and that he acquired this land for the purpose of erecting a bungalow for his own residence which he did erect. He transferred the entire block to Mr. P. Veriah Naidu, who was an Assistant Surgeon in the Cuttack General Hospital and whose sons are the defendants There is evidence that Veriah Naidu rebuilt the bungalow of Mr. Burgess and also built two more bungalows which he let out and then on 4th November 1907 he gave a sublease of 15.08 acres out of this block to Nalum Subramaniam on a rent of Rupees 141-6-0 together with cess Rs. 4-6-9 for the purpose of erecting pakka buildings, rice-mill etc. as above stated. At the time of this lease the record of rights current was-that framed at the time of the Provincial Survey of 1898 in which Veriah Naidu was entered as "istimrari patta khariddar babat pahi raiyat"; but the Revisional Survey was prepared in 1911. In this record Nalum Subramaniam is entered as "shikimi babat chanda raiyat." Thereafter, on 30th November 1921, Nakim Subramaniam sold the land and buildings to the plaintiff for Rs. 41,000 Neither the plaintiff nor his. vendor took any steps to challenge the correctness of the Revisional Survey entry or to dispute the legality of the rent payable under the lease which was approximately four times the rent of the entire block of 22 acres.

Since then it appears that out of the 22 acre block about 4 acres have been acquired by Government for an emigration office and 18.15 acres were found to constitute at present the tenure or tenancy of the sons of Veriah Naidu, the rent payable by them being Rs. 34-12-3. That was the position when the current settlement proceedings were taken up and they resulted in the sons of Veriah Naidu being entered as istimrari ehandnadars and the plaintiff as istimrari darchandnadar and the assessment of fresh rents at the rate of Bupees 104-5-0 for the chandnadar and Rs. 437-6-0 for the plaintiff as darchandnadar. It is to be remembered in considering whether the plaintiff can succeed in this suit that there is a statutory presumption of correctness attaching to the Record of Rights and where the entries in successive records; differ the presumption attaches to the latest entry. The entry implies that the tenancy of the defendants was a tenancy which at its inception was not for agricultural purposes but for residential and erection of pakka buildings. This entry is in full agreement with what appears in the evidence of the history of the land; and I have no doubt that the entry is correct. If the plaintiff claims to hold as an under-raiyat and to enjoy the privilege conferred on under-raiyats by Section 56, then the original sub-lease of 4th November 1907 was, from its inception illegal and the plaintiff and his predecessor have been paying illegal rents for nearly 30 years.

It has been argued that the expression ''chandnadar'' has been defined in Section 3(3), Orissa Tenancy Act, and this definition excludes any persons other than those holding land which was recorded as chandna in the course of the provincial settlement. Stress is laid on the words "land which has been recorded as chandna in the course of a settlement of land revenue." It is pointed, out that the Revisional Survey was not a survey in which land revenue was settled and therefore the use of the word "chandnadar" in the revisional record would not bring the chandnadar within this definition. Leaving aside the revisional survey, however, there is the current survey in which admittedly a settlement of land revenue has been made. But Mr. Chaterji ingeniously argues that entry in the record as ''chandnadar'' in this settlement will not bring the land within the definition because the definition must be read as speaking on the date of the commencement of the Act--that is to say if land has not been recorded as ''chandna'' before the Act its holder will not be ''chandnadar� at any subsequent time. The usual canon of construction however is that every Act is to be read as speaking in the present--that is to say speaking on the; date on which it is to be applied. Hence the argument does not assist the plaintiff in displacing the presumption of correctness attaching to the entries in the Record of Rights.

For the reasons given above, I am of opinion that the entries are correct. The tenancy which is now held by the defendants was not in its inception a tenancy for any agricultural purposes but for residential and house building; it is not a raiyati tenancy and the plaintiff is not an under-raiyat. On this view the appeal must be dismissed with costs. Leave to appeal under Letters Patent is refused.