Tulo Naik and Others vs Bageshwari Charan and Others

Das, J.—This was a suit to eject the defendants from the disputed lands on the ground that the lands are goraiti lands and the defendants have declined to render any services as goraits. The Court of first instance dismissed the suit on the ground that the defendants have acquired a right of occupancy in the lands. The lower appellate Court reversed the judgment of the Court of first instance and has given the plaintiff a, decree substantially as claimed by him.

The whole question in the case is whether it is a case of tenancy of land burdened with service in lieu of rent or a pure service tenure. The learned Judicial Commissioner has considered the final settlement report and the entry in the Record-of-Rights and has come to the conclusion that the holdings are pure service tenures. Mr. B.C. De concedes that if the case arose under the Chota Nagpur Tenancy Act, he would have no answer to the suit; but he insists that his tenancy commenced at a time when the Chota Nagpur Landlord and Tenant Procedure Act (Bengal Act 1 of 1879) was in force and as there was nothing equivalent to Section 77, Chota Nagpur Tenancy Act in Bengal Act 1 of 1879, he acquired a right of occupancy under that Act, and Section 77, Chota Nagpur Tenancy Act could not operate to take away a right of occupancy which he had already acquired under Bengal Act 1 of 1879.

No doubt Section 6, Bengal Act 1 of 1879, provides that every raiyat who has cultivated or held land for twelve years has the right of occupancy in the land so long as he pays the rent payable on account of the same. Mr. B.C. De contends that he is a raiyat and that he paid rent on account of the land to the landlord for twelve years before the Chota Nagpur Tenancy Act came into operation and accordingly he acquired a right of occupancy in the land.

The argument in my opinion begs the whole question which is in issue in the case, namely, were Mr. B.C. De''s clients at any time raiyats and did they ever pay rent on account of the land. It is conceded that they never paid either money rent or produce rent; but Mr. B.C. De relies upon the definition of "rent" in the Transfer of Property Act to make good his point that rendering of service is equivalent to payment of rent. We are not concerned here with the definition of rent under the Transfer of Property Act.

It is useful to point out that under the Chota Nagpur Tenancy Act a rent does not include personal services and I shall be surprised to hear that in any Tenancy Act personal services have ever been taken as rent; but as I have said, the whole question in the case is were Mr. B.C. De''s clients ever regarded as raiyats. The question is one of fact and the learned Judicial Commissioner has come to the conclusion that the case is not one of a tenancy of land burdened with service but is one of pure service tenure.

It was laid down in Radha Pershad Singh v. Budhu Dusadh [1895] 22 Cal. 938, that a service tenure created for the purpose of services private or personal to the zamindar may be resumed by the zamindar when the services are no longer required or when the grantee of the tenure refuses to perform the service. It has been found by the learned Judicial Commissioner that the grantees have in this case refused to perform the services.

The judgment of the lower appellate Court, in my opinion is perfectly correct and I must dismiss these appeals with costs.

Kulwant Sahay, J.

I agree.