Thakur Chandra Mohan Singh and Others vs Butu Mian and Others

James, J.—The plaintiffs in 1859 obtained from the landlord a lease of a certain area known as Guruakanali. The area apparently consisted of certain comparatively low-lying land rising on the east and west bounded on the east by a larger area of low-lying land which was known as Barkagarha. The plaintiffs brought into cultivation the whole of the land settled with them with the exception of comparatively small portions contained in plots Nos. 186 and 188 of the survey which lie respectively on the east and west of the block. When the Record of Bights was prepared, these two plots were entered as waste land in possession of the landlord and subsequently the landlord leased out portions of plot No. 186 to tenants who have reclaimed the land.

The plaintiffs instituted the suit out of which this appeal arises for recovery of possession from the landlord and his tenants, and their suit was decreed in the trial Court. The Court found that the plain, tiffs had proved that the disputed plots formed part of the area settled with their ancestors in 1859; and that the plaintiffs should be regarded as having been continuously in possession. The ground on which the trial Court came to this finding on the question of possession was that the area in suit consisted of land on which at the time of the preparation of the Record of Bights neither party was exercising specific acts of possession; and that therefore in this case possession should be presumed to be with the persons who had title to the land. An objection was also taken that the tenant-defendants by their acts of reclamation had acquired special rights by converting the land into korkar within the meaning of Sections 61 and 67, Chota Nagpur Tenanoy Act but it was held that such rights could not be acquired in land which formed part of the holding of an occupancy raiyat. The defendants'' appeal was dismissed on substantially the same grounds as those of the trial Court, and a second appeal to the High Court has also been dismissed ; but the learned Judge of this Court gave leave to appeal under Clause 10, Letters Patent.

Mr. B.C. De on behalf of the defendant-appellants argues in the first place that the plaintiffs'' suit ought to have been dismissed as barred by limitation, because they bad failed to prove actual possession within 12 years of the suit. According to the Record of Bights, the land in question was waste land in possession of the proprietor; but in the present case the Courts have found that neither the plaintiffs nor the defendants have proved any specific acts of possession over these particular plots up to the time of the preparation of the Record of Rights.

The learned District Judge when he said that in these circumstances it should be presumed that possession went with title did not express himself very happily, and he appears to have omitted to notice or not to have laid sufficient stress upon the fact that these two plots formed part of a large area settled with the plaintiffs about 70 years before, of which the greater part is being cultivated by the plaintiffs and is actually in their cultivating possession. When an area of this kind is settled with the tenant he cannot be required to prove specific acts of possession over every square yard of his holding and the cultivation of the bulk of the demised area must be treated as enjoyment of possession of the whole in the absence of proof of specific acts of adverse possession done by some other party. Nothing of the kind has been proved in the present case and the cultivation of the greater part of the area demised must be treated as enjoyment of possession of the whole for the purposes of Article 142, Limitation Act.

Mr. B.C. De argues in the second place with reference to plot No. 186 that defendants 2 and 3 by their acts of reclamation have acquired rights in the land as korkar land by virtue of the provisions of Sections 64 and 67, Chota Nagpur Tenancy Act. The learned Judge of this Court in arriving at his decision has discussed several decisions of single Judges of this Court on which before him the argument of the appellants was based; and he has come to the conclusion that so far as these decisions might be held to suggest that korkar rights can be acquired by a trespasser on the holding of an occupancy raiyat, they must be regarded as erroneous.

The first of these decisions is that of the late Atkinson, J. in Rahamali Kalal v. Chintamon Kumar A.I.R.1917. Pat 243. In that case the plaintiffs had obtained settlement of certain land from the khas mahal and the defendants trespassing on the land had converted it from tanr to paddy land and had remained in possession of it for 20 years. On these facts it would appear that the plaintiffs had no subsisting right to eject the defendants; but it was found that the defendants had actually acquired by virtue of the provisions of Sub-section 3 of Section 64, Chota Nagpur Tenancy Act, korkar rights against the plaintiffs. As Mohamad Noor, J. has pointed out, it is not clear whether the plaintiffs were tenure-holders or raiyats. Mr. B.C. De points out that their tenure is described as a holding from which it might be inferred that they were raiyats; but if they actually were occupancy raiyats, it is to be observed that Sub-section (1)(a) of Section 64 would have excluded the operation of Sub-section (3) of that section; and we must therefore suppose, since otherwise the decision would have been erroneous, that the plaintiffs were actually tenure-holders.

In 1927, Allanson, J. in Lal Sahi Palian v. Deba Munda A.I.R.1928. Pat 87 found that certain tenants had acquired korkar right by re-claiming the land under the Mundari khuntkattidars; but he has there pointed out that the Mundari khuntkattidars, although as individuals for their own particular holdings they might enjoy the rights of raiyats, were actually as a body the landlords of the village and they described themselves in the plaint as maliks.

In 1928 in Akshoy Mandal v. Phalari Bhumij, Second Appeal No. 89 of 1925 Ross, J. found that certain other raiyats had acquired the status of occupancy raiyats under plaintiffs who were settled raiyats of the village, regarding the matter as concluded by the decisions in Rahamali Kalal v. Chintamon Kumar A.I.R.1917. Pat 243 . Dhavle, J. considered himself bound by these decisions and came to a similar conclusion in Doman Mia Vs. Gunaram Mahata, .

Mohamad Noor, J. has pointed out that if an occupancy raiyat can be regarded as a landlord within the meaning of Section 64, Chota Nagpur Tenancy Act, so that the person who trespasses on his land and reclaims it becomes his tenant under him, a status unknown to the Chota Nagpur Tenancy Act would be created, of an under-riyat possessing rights of occupancy. Section 64, Chota Nagpur Tenancy Act, deals with cases in which raiyats have committed what would normally be an aot of trespass on the waste land of the village and laying down that in certain circumstances the landlord must be deemed to have given his consent to the reclamation, whereby the persons who would otherwise have been trespassers become occupancy raiyats under the landlord; but Sub-section (1)(a) of the Section excludes land included in the tenancy of a cultivator who has aoquired a right of occupancy in it, so that nothing in Section 64, Chota Nagpur Tenancy Act, can be treated as applying to acts of trespass of this nature committed on land which forms part of the holding of an occupancy raiyat.

Mr. B.C. De suggests that the plaintiffs have not acquired any right of occupancy in any land forming part of their holding which they have not brought into direct cultivation; but the Explanation to Section 6, Chota Nagpur Tenancy Act, makes it dear that where a tenant of land has the right to bring it under cultivation, he is to be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he may not actually cultivate it.

The suit cannot be treated as barred by limitation, and the defendants can claim no right against the plaintiffs by virtue of the provisions of Section 64, Chota Nagpur Tenancy Act, because the plaintiffs have the status of occupancy raiyats on the land in dispute.

I would therefore maintain the order of the Judge of this Court and dismiss this appeal with costs.

Courtney-Terrell, C.J.

I entirely agree.