Thakur Pitambar Singh vs Khago Kumhar and Others

Edward Chamier, C.J.—This appeal arises out of a suit brought by the appellant for possession of 5 1/2 bighas of land. The Munsif decreed the claim in full but his decision was reversed by the Judicial Commissioner. The land in suit is admittedly the property of the plaintiff. It lies in a village which was held for about 20 years in theka by one Meghu. Meghu died and in September 1909 the plaintiff gave the village in theka to defendant No. 5, a descendant of Meghu, for one year. Defendant No. 5 had two minor brothers who are defendants Nos. 6 and 7, and it may be assumed that the theka was granted to defendants Nos. 5--7. In February 1910, that is during the year for which they had taken the village, defendants Nos. 5--7 settled 5 1/2 bighas in suit with defendants Nos. 1--4. A salami of Rs. 300 was paid and defendants Nos. 1--4 agreed to pay an annual rent of Rs. 12. Two or three months later defendants Nos. 5--7 surrendered the theka, The plaintiff''s case is that the settlement of the land with defendants Nos. 1-4 was fraudulent and collusive, that is to say, that defendants Nos. 5--7 colluded with defendants Nos. 1--4 to cause loss to the plaintiff. The plaintiff maintains that he is entitled to disregard the settlement and to take actual possession of the land. The first Court found that the settlement was collusive and fraudulent. On appeal the Judicial Commissioner held that whatever may have been the motives of defendants Nos. 5--7, there was nothing to show that defendants Nos. 1--4 had joined in a fraud of any kind and, therefore, they were entitled to retain possession of the land. In fact it would appear that it was the opinion of the Judicial Commissioner that if there was any collusion at all in the case it was between the plaintiff and the defendants Nos. 5--7 who almost immediately after settling the land with defendants Nos. 1--4 surrendered the theka. The document by which the settlement was made with defendants Nos. 1--4 has been read to us. It recites that defendants Nos. 5--7 held the village as thekadars. Defendants Nos. 5--7 claim in this document to be entitled to the land now in question as khunt khattidars. That claim is untenable and has not been put forward in the present case. The Judicial Commissioner has found that the land in question was bakasht land and might properly have been dealt with by defendants Nos. 5--7 as thekadars. The document purports to confer an occupancy right upon defendants Nos. 1--4. It is conceded that defendants Nos. 5--7 had no authority to confer an occupancy right in the land on defendants Nos. 1--4. The only question is, whether defendants Nos. 1--4 are entitled to retain possession as raiyats notwithstanding that defendants Nos. 5--7 claim to be entitled to rights in the land which they did not possess and purported to confer upon defendants Nos. 1--4 a right which they had no authority to confer. There can be no doubt that defendants Nos. 5--7 were entitled to make an ordinary settlement with defendants Nos. 1--4 as non-occupancy tenants and it appears to me that the settlement which they made took effect as such, that is to say, that defendants Nos. 1--4 became non-occupancy raiyats of the land, The plaintiff appears to have given them notice to quit bat u/s 41 of the Chota Nagpur Tenancy Act a non-oecupancy raiyat is not liable to ejectment except on one of the grounds stated in that section. It is not suggested that any one of the grounds stated in that section has been made out in the present case and, therefore, it appears to me that the plaintiff is not entitled to a decree for possession of the land. There has been no finding on the question whether the rent payable by the defendants Nos. 1--4 is a fair and equitable rent or not, but if it is not it would appear that the plaintiff has his remedy under Chapter VI of the Act. I would hold that although defendants Nos. 5--7 had no authority to confer occupancy rights on defendants Nos. 1--4 the latter are entitled to retain possession as non-occupancy tenants and I would, therefore, dismiss this appeal with costs.

Sharfuddin, J.

I agree.