Uchit and Another vs Adhik Mandal and Others

Dawson Miller, C.J.—The suit out of which this appeal arises was instituted by the respondents as plaintiffs against the appellants as defendants to eject the defendants from certain lands on the ground that the plaintiffs were the occupancy raiyats of the land and the defendants were under-raiyats holding under them. The plaintiffs also claimed mesne profits from the date of the expiry of the notice to quit, which was duly served, until the date of possession. The plaintiff''s title to the land as raiyats is based upon a purchase by registered deed in the year 1914 from Nunoo Lal and Dwarka Nath, the previous tenants.

The defendants disputed the validity of the plaintiffs title on the ground that the sale-deed was not properly registered. They further contended that the plaintiffs and their predecessors were tenure-holders and not occupancy raiyats and that they, defendants, had acquired occupancy rights as raiyats under the plaintiffs. They further relied upon a certain representation contained in a rent-receipt granted by the plaintiffs to the effect that they were tenure-holders and pleaded that this Created an estoppel.

The Munsif before whom the case came for trial found all the issues in favour of the plaintiffs and decreed their suit.

His decision was upheld by the Subordinate Judge on appeal and again by Mr. Justice Bucknill on second appeal to this Court.

The present appeal is preferred by the defendants under the Letters Patent from the decision of Mr. Justice Bucknill.

The first point which wag urged before us in this appeal was, that the transfer to the plaintiffs by Nunoo Lal and Dwarka Nath in 1914 was invalid as it was not properly registered. It appears that the land transferred by the sale-deed measured 56 bighas 10 cottahs. The 56 bighas which is the land in dispute in this case are situated in the Purnea District and the 10 cottahs are situated in the Bhagalpur District. It is conceded that the 10 cottahs were included in the sale-deed for the purpose of enabling the sale-deed to be registered in the Bhagalpur District where in fact the registration took place at the sub-registry office at Madhipura. It was not contended that the 10 cottahs of land at Madhipura had no existence nor was any objection taken in the written statement that the registration was not valid and no issue was framed upon this point. This 6th issue, however, was framed thus:

Is the kobala propounded by the plaintiffs a legal and valid document or not?

This issue was not pressed at the trial and the Munsif found that it had been abandoned. Before the Subordinate Judge on appeal the appellants contended that the registration was invalid, a point which does not appear to have been taken in the Trial Court. They relied upon a deposition given by the first plaintiff in an earlier case in 1915 in the Munsiffs Court at Purnea which had presumably been put in evidence at the trial in which he stated: "The kobala was executed at Madhipura. I purchased 10 cottahs of land at Madhipura--it is still in possession of Nunoo Lal for the purpose of getting the kobala registered there." It was found by the Subordinate Judge that the land was in fact purchased and even if it was purchased with the express intention of giving jurisdiction to the Sub-Registrar at Madhipura to register the deed, there is nothing illegal or improper about this. It was for the learned Judge to say whether the purchase of the 10 cottahs was a genuine transaction or not. He found that it was and this appears to me to dispose of this point.

It was next contended that what was purchased by the plaintiffs was not a holding but a tenure and that the defendants were not under-raiyats but raiyats holding under the plaintiffs as tenure-holders and could not, therefore, be given notice to quit. The learned Subordinate Judge treated the case as one in which the onus was on the plaintiffs to prove that the defendants were under-raiyats and that they (the plaintiffs) were raiyats and not tenure-holders and no objection is taken by the appellants to his ruling upon this point. He went carefully through the evidence upon this part of the case and came to a clear finding that Nunoo Lal and Dwarkanath, the predecessors-in-interest of the plaintiffs had acquired the land for the purpose of cultivation only and bad khas possession by cultivating the land and not by collecting rents from tenants. The rent-receipts for the rent paid to their landlord were produced and they were therein described as raiyat-jote-dars and it was found that for nearly fifty years the proprietors Ugranarain and Fatehnarain had treated Nunoo and Dwarka as cultivating raiyats. It was further shown that some of the defendant''s co-sharers had purchased a share of the proprietary interest of the plaintiff''s landlords and that they had collected rent from the plaintiffs describing them in the rent receipts as raiyat jotedars. There were other documents also, notably a plaint in a rent-suit instituted by one of the defendant''s co-sharers against Nunoo Lal, in which the interest of the plaintiffs'' predecessors was described as that of raiyats in possession of the land through dar-raiyats. The evidence to the contrary given on behalf of the defendants was very meagre and was not accepted by the learned Subordinate Judge. It was contended, however, that the area of the land transferred to the plaintiffs was over 100 standard bighas and that, therefore, there was a presumption arising u/s 5(5) of the Bengal Tenancy Act that the tenant was a tenure-holder until the contrary was shown. The learned Judge found as a fact that the area was 56&frace12;. bighas as stated in the kobala of 1914 and that no such presumption arose. It was pointed out, however, on behalf of the appellants that although in the kobala the total area of the land was described as 57 bighas 1 cottah it was also stated to measure 167 bighas 10 cottahs when measured by a laggi of 4 cubits which is the standard measurement and that the smaller area had been arrived at by measurement with a laggi of 6&frace12;. cubits. The evidence on behalf of the plaintiffs was that the standard pole in chakla where the land in suit was situated was 4&frace12;. cubits and not 6&frace12;. cubits. If this be accepted the actual standard measurement would be under 100 bighas. This evidence appears to have been uncontradicted by the defendant''s witnesses and the learned Judge accepted that evidence as correct and found that the area was under 100 bighas. As a finding of fact this is conclusive. The finding, however, was criticised by the appellants as being contrary to the evidence in the kobala itself which described the area of the land when measured by a 4 cubits pole as over 100 bighas. This statement in the kobala does not appear to have been drawn to the notice of the learned Judge and no mention is made of it in the judgment. It is contended that it is conclusive of the area and that the learned Judge ought to have given effect to the presumption arising out of the Statute in considering the evidence as to the nature of the plaintiffs interest. I am not prepared to say that the statement in the kobala is conclusive as to the area of the land. It was undoubtedly evidence and very strong evidence of the area but there was evidence of a contrary nature which was apparently uncontradicted by the defendants who appear not to have relied upon the statement in the kobala before the Subordinate Judge, but even assuming that it must be taken that the land in suit measured over 100 standard bighas and that a presumption arose therefrom in favour of the appellant''s contention that the plaintiff''s interest was that of tenure-holders the learned Judge did undoubtedly place the onus upon the plaintiffs to prove that their interest was that of raiyats and after reviewing the whole of the evidence agreed with the finding of the Trial Court and came to a clear conclusion that the plaintiffs had discharged the burden of proof which lay upon them. In these circumstances, it seems to me that the finding of the learned Subordinate Judge on this part of the case ought not to be disturbed.

The last point which was urged before us was that in the year 1324 F. the plaintiffs granted a rent-receipt to the defendants which contains at the foot the following entry: "let out the jama zamain mukarrari" and it is signed by the plaintiffs, the first plaintiff Adhik Lal Mandal being described as Sadar Malguzar. This receipt was granted after some dispute between the plaintiffs and defendants and after their differences had been referred to a panchayat and a compromise arrived at. It was contended that the use of the word Mukarrari and the description of the plaintiff as Sadar Malguzar are an admission that the defendants held a permanent-interest at a fixed rent and that the plaintiffs are tenure-holders and that as this was arrived at as the result of a compromise by which some nazarana was paid to the plaintiffs the plaintiffs are estopped from denying the truth of the representation made in the rent-receipt. What the exact nature of the compromise was does not appear to have been explained beyond what can be gathered from the rent-receipt. The use of the word Mukarrari does not in itself imply any permanent interest but merely fixity of rent, In dealing with this part of the case the learned Munsif observed as follows:--"The word Mukarrari means fixity of rent and is not intended to convey the meaning of occupancy raiyat. It is urged that the rent of an under-raiyat cannot be fixed in perpetuity and so it must mean occupancy raiyat with rent fixed. What the parties meant by the expression Mukarrari in Exhibits A and B-l" (the latter being the counterpart of the former) "there is no evidence to show and I am left to speculate as to its meaning not from evidence but from a mere supposition not borne out by the other circumstances. As far as the Glossary goes no such meaning attaches to the word Mukarrari and I am not justified in interpreting it in that light. It is quite probable that the parties intended that the rent must be fixed once for all and that this may operate as an admission of the plaintiffs as to fixity of rent. Beyond that it cannot take away the plaintiffs right in ejectment." The learned Subordinate Judge took the same view but neither of them was apparently asked to attach any importance to this description of the first plaintiff as Sadar Malguzar as this is not dealt with in either of the judgments. The word malguzar means, primarily, rent-payer. It may equally be applied either to a tenure-holder or a raiyat and although the word malguzar is one of several used locally in North Bihar to mean tenure-holder, the document is not so clear and unambiguous as to amount to a representation on behalf of the plaintiffs that they were treating themselves as tenure-holders and the defendants as raiyats holding under them. It is, as Mr. Justice Bucknill pointed out in dealing with this part of the case, "extremely unlikely in view of the position which had always been maintained by the plaintiffs and their predecessors that that position would have been completely thrown away by an admission in a document such as this." The findings of each of the lower Courts are very strong as to the status of the plaintiffs and defendants and I am not prepared to hold that a chance expression of at least doubtful import in a rent-receipt is a clear representation by the plaintiffs acted upon by the defendants and amounting to an estoppel. In my opinion this appeal should be dismissed with costs.

Mullick, J.

I agree.