Patna High Court
Degan Mahto And Ors. vs Kumar Kamakhya Narayan Singh And Ors. on 10 April, 1933
Equivalent citations: 148IND. CAS.565, AIR 1933 PATNA 504
JUDGMENT Macpherson, J.
1. This litigation commenced so long ago as January 25, 1923, and it is with much reluctance that I have come to the conclusion that a second remand to the final Court of fact is essential. Unfortunately the matter was at first dealt with by an-officiating Subordinate Judge who had no acquaintance with Chota Nagpur conditions.
2. The proprietor of the Ramgarh Estate sued for resumption (with certain exceptions) of village Dhobari in Thana Bagodar on the allegation that he was entitled to resume on the death in 1921 of Sukho Mahto, the last survivor of two persons Lilo and Sukho Mahto to whom the estate had in 1922 S. granted an istimrari mukarrari tenancy of the village in the well-known form and for a declaration that the entry "non-resumable khuntkatti" made in Khewat No. 2 and its Sub-heads was erroneous and made without jurisdiction. The exceptions were such lands as were held by the defendants or any of them as raiyats having khuntkatti rights.
3. The defence substantially was that the tenancy of the village was held not upon the istimrari mukarrari lease of 1922 S. but on a mohtoai grant, Ex. A, for reclamation of an undeveloped tract of land within village Ambadih made to Gopali Mahto by the plaintiff's predecessor in 1823. Section(equivalent to 1766 A.D.) that the defendants and their ancestors had been in possession from that date and that the tenancy was not liable to resumption in any contingency. Under the Chota Nagpur Tenancy Act, 1908, such a tenancy is recognized as khuntkatti and the entry "non-resumable khuntkatti" is quite, correct. The patta of 1922 S super imposed upon their original right did not effect.
any alteration in the original status of the defendants or the incidents of their tenancy.
4. They further relied upon Section 132 of the, Act as making the entry in the Record of Rights conclusive evidence of their rights and obligations and on Section 258 as barring the suit.
5. It may be indicated that the actual entries in khewat No. 2 of the Record-of-rights of Dhobari as to the tenure" of the appellants are (col. 3) that the nature of the right in the tenure, is "maurusi (ancestral) khuntkatti" and (col. 4) that the tenure is not resumable.
6. The Subordinate Judge decreed khas possession of village Dhobari to the plaintiff.
leaving intact the lands in possession of the raiyats and those recorded as khuntkatti raiyati of the defendants' ancestors in the Record of rights.
7. He held that the entry in the khewat so far as the reclaimed lands were concerned, was conclusive between the parties but that the entry of khuntkatti regarding, the jungle lands was without jurisdiction and ultra vires.
8. In appeal by the defendants the learned Judicial Commissioner who had great experience of Chota Nagpur explained the position as regards khuntkatti tenure and; quoted paragraph 190 and other portions of the Survey and Settlement Report of ,1917 to; show that a number of such tenures' had been found among the islimrari mukarrari villages in the south of the Hazaribagh district and that in respect of them it had been noted in the Record of Rights that the nature of the tenure was khuntkatti that it was not liable to resumption and that the effect of the mukarrari patta was only to give fixity to the rent payable. He held that the entry having been made also under Chapter XV and with jurisdiction was conclusive as to the rights and obligations of the appellants in so far as they were headmen having khuntkatti rights and further held that even if the entry was not conclusive under Section 132, nevertheless the statutory presumption of correctness attaching to the Record of Rights under Section 84(3), would still prevail, unless the plaintiff could prove, by evidence, that the entry was incorrect, and that the plaintiff had failed to prove its incorrectness. He, therefore, allowed the appeal and dismissed the suit.
9. In second appeal by the plaintiff the provisions of Chapter XV of the Chota Nagpur Tenancy Act and in particular Section 127 under which the Local Government may make an order Directing that a record be prepared by a Revenue Officer of the rights and obligations in any specified local area of
(a) raiyats having khuntkatti rights;
(b) village headmen; or
(c) any other class of tenants, was considered. Notification No. 1457 of September 10, 19 0, had directed that such a Record of Rights be, made in Thana Bagodar with respect to the first two classes. It was urged on behalf of the plaintiff respondent, first, that the Revenue Officer had no jurisdiction to record under Chapter XV of the Act the rights and obligations of tenure-holders having kuntkatti rights; and, secondly, that in any event upon the notification mentioned the Revenue Officer had no jurisdiction under Chapter XV to prepare a record of the rights and obligations of such tenure-holders. The Court declined to determine, the first point but accepted the second contention. The Court then found that; the lease of 1823 Section was a reclamation lease and that if the document produced by the defendants-appellants was a genuine document and they had been in possession of the village throughout under it, they were unless some explanation was; forthcoming entitled to retain possession of the village, and as the point had not been-considered by either of the Courts below the; case was remanded to the lower Appellate Court for disposal of the point left; undetermined by it.
10. As one who has had much experience of Chota Nagpur and especially of the enactments mentioned, I would with great respect suggest that the first contention-of the respondents was unsound and must, be answered in the negative. In the Chota Nagpur Landlord and Tenant Procedure Act, 1879, the provisions as to khoodkatli (which is quite the same as; khutkatti or khuntkatti) are contained in Section 19 which runs thus:
So tenant of lands known as bhuinhari or khoodkatti shall be liable to any enhancement of the rent previously paid by him for such lands, unless it be shown that the tenure has been created within 20 years before the institution of the suit to enhance the rent of the said lands.
11. Here 'khoodkatti' is referred to as a 'tenure' and though as is well known, in the older legislation that term may sometimes be equivalent to 'tenancy' in the, terminology of the modern draftsman and so include both a tenure and a holding, it is manifest that while the term covered holdings also, tenures in the modern sense were within its contemplation. The next stage was the Amendment Act of 1906 whereby the important Sub-class of Mundari khuntkaitidars was cut out from the wider class of holders of khuntkatti (khoodkatti) tenures and separately dealt with. In particular, it was advisedly enacted that a Mundari khuntkatt'idar is not a tenure-holder nor a raiyat, in order that the rulings as to tenures and holdings should not be applicable to his tenancy. It is well-known, however, that for the sake of convenience the two main sections into which Mundari khuntkattidari tenancies fall, began to be spoken of as quasi tenures and quasi holdings. In the Chota Nagpur Tenancy Act, 1908, the term "raiyat" was extended to include "raiyat" with "khuntkatti rights" which expression was defined or explained in Section 7(1) while the other holder of khuntkatti tenancies (not being Mundari khuntkaitidars) are dealt with in Section 7(2) which is as follows:
Nothing in this Act shall prejudicially affect the rights of any person who has lawfully acquired a title to a khuntkattidari tenancy before the commencement of this Act.
12. The term "khuntkattidari" is only a convenient English adjective form khuntkattidar, the holder of a khuntkatti tenancy, and it has the same significance as "khuntkatti'' used adjectivally. (Indeed the variations in the terminology are due to localism or personal predilection of the writer).
13. In Section 7(2) the Act saves from impairment by any of its own provisions the rights of existing holders of all khuntkatti tenancies and not merely the rights of khuntkattidari tenants who fall within the class of raiyats with khuntkatti rights which is described in Section 7(1);. The Act in fact leaves khuntkattidari (or khuntkatti) tenancies which are tenures, to be regulated by their own conditions.
14. Now in a village containing raiyats having khuntkatti rights one of them, the village-headman, is often the tenure holder of the village and the tenancy is his ancestral (maurusi) khuntkatti. Accordingly not only could an entry of the khuntkatti nature of a tenure be made with jurisdiction on an appropriate notification under Section 127(c) but an entry of maurusi khuntkatti will be made with jurisdiction under Section 127(b) when the rights and liabilities of a village headman are being recorded, if such village headman is a tenure-holder' and his tenancy is maurusi khuntkatti. The term implies at least permanence (or as it is styled non-resumabilitv) of the tenure acid that is a reason why it must, be recorded.
15. As regards the second plea, if the matter were res integra, I should myself have negatived it without hesitation. But the, decision is binding in the present litigation and accordingly it was not open to the Judicial Commissioner, nor is it open to this Court on appeal from his decision, to depart from the finding. But it falls to be indicated that the decision is confined to the two points that in the present case first the entry of maurusi khuntkatti in so far as it is a record under Chapter XV is without jurisdiction, so that Section 132 does not apply to make the entry conclusive, and secondly that Section 258 read with Chapter XV, is not applicable.
16. Upon remand the officiating Judicial Commissioner held that the sanad of 1823 Section (Ex. A) was a genuine document but that it has not been shown that the appellants had been in possession of the village throughout under that document and accordingly he dismissed the appeal.
17. Before me it has been urged that the judgment on remand is vitiated by failure to grasp the position and in particular, to consider the chief evidence on behalf of the appellants. In my opinion the contention cannot be gainsaid. The chief (though not the only) evidence on behalf of the appellants was the khewat which shows that at the date when the record was prepared, there was a tenure of the appellants and that it was maurusi khuntkatti land non-resumable as well as held istimrari mukarrari under the grant of 1922 S. The lower Appellate Court makes no reference at all to this most important piece of evidence and it is clear that that Court considered that there had been a decision on the point by the High Court before remand. That, however, is a complete misunderstanding of the order of this Court. The only question under consideration in this Court was whether Chapter XV was applicable. This is obvious from the whole trend of the judgment, the reference to the notification under Section 127 issued on September 10, 1910, to Sections 128 and 132 and the quotation from Section 258 which is restricted to Chapter XV. Now on September 10, 1910, two notifications were issued, namely No. 1456 to which this Court then referred, and No. 1453 of the same date issued under Section 80 of the Act in which under Section 81 entry is to be made of
(a) the name of each tenant or occupant, (b) the class to which each tenant belongs, that is to say, whether he is a tenure-holder, Mundari khuntkattidar, settled raiyat, occupancy raiyat, non-occupancy raiyat, raiyat having khuntkatti rights, under raiyat or other class of tenant, and, if he is a tenure holder, whether he is a permanent tenure holder or not and whether his rent is liable to enhancement during the continuance of his tenure.
and with notification No. 1453 this Court naturally did not deal.
18. It is palpable that if notification No. 1456 was not adequate to render the entries in cols 3 and 4 conclusive under Section 133, notification No. 1453 abundantly fulfils the conditions for the application of Section 84(3) whereby every entry in a finally published Record of Rights shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect. As the appellants admittedly hold a tenure, the notification imposed upon the officer making the record the obligation of recording whether the tenure is permanent and whether the rent thereof is subject to enhancement during its continuance. There can be no question that the entries are made with jurisdiction. There is, therefore a statutory, though rebuttable, presumption in favour of the entries maurusi khuntkatti not resumable and istimrari mukarrari in the khewat. These entries are entirely consistent with one another. The entry khuntkatti imports that the origin of the tenure is found in the reclamation from jungle, by the tenure-holder or his ancestor of the cultivable portion of the tract demised and the addition 'maurusi' stresses the special character of the tenure and perhaps further serves to show that the reclamation was by an ancestor. Khuntkatti and still more maurusi khuntkatti also of course import that the tenure-holder and his ancestors have been in continuous possession since the foundation of the tenancy. Not resumable shows that the tenancy is permanent. The mention of the istimrari mukarrari lease signifies that the tenure is apart from the limits of that lease, subject to variation of rent. The copy of the khewat shows that it was finally published under Section 83(2). It is clear that the lower Appellate Court ought at once to have called upon the plaintiff respondent to show how he had rebutted, by evidence, the presumption of correctness attaching to these entries.
19. Mr. S.M. Mullick on behalf of the plaintiff-respondent prayed that this Court should deal with the question whether the plaintiff had rebutted the presumption and suggested that the findings of fact of the lower Appellate Court were in his favour. Assuming that to be the case, such findings are valueless when the basis of consideration, is as here unsound. Further they are unconvincing even on the unsound basis adopted. That the appellants are khuntkattidars of the village follows from the fact that they are 'raiyats with kuntkaiti right' of the village. The mere fact that there were intermediate leases of the tenure with increases (at intervals) in the rent imports nothing more than that the khuntkatti tenancy was not at a quit rent but subject to enhancement of rent. The sarsikan paper of 1843 merely goes to show that two persons then held Ambadih under the landlord of whom one was Sundeo, apparently son of the grantee Gopali and father of that Lilo who is shown in the khewat. And the explanation obviously is that Dhobari is within the ambit of Ambadih. Mr. Rowland attached no importance to the alleged khorposh grant in 1916. to the Maharani at a rent of the original Rs. 27 and indeed the direct grant to Sundeo three years later was at that sum plus the usual additions to meet cess at one anna in the rupee. The constant changes in the rent would be an inducement to the khuntkatti holder to take an istimrari mukarrari tenure for the longest of two named lives (which indeed proved to be 54 years) at an increase of rent from Rs. 28-11-0 (or Rs. 27) to Rs. 63. The observation that the revenue authorities took the view that the village was not held under the sanad but under the mukarrari is not easy to follow in the face of Ex. F, a copy of the decision on the landlord's objection under Section 83 praying for the cancellation from the khewat of the entry of khuntkatti right, which resulted in the retention of sthe words 'maurusi-khuntkatti' with the addition in the column for "remarks" of the superimposed right of 'mukarrari istimrari' which relates to rent only and not to the permanence of the tenure itself. And, indeed apart altogether from the all important entries of maurusi khuntkatti and non-resumable, it certainly does not appear especially in face of the conclusions of Mr. Rowland, that prima facie the question of fact as to possession of the tenure all along by the appellants ought to be decided in favour of the plaintiff-respondent.
20. Accordingly I allow this appeal, set aside the decision of the Court below and remand the appeal for decision upon the basis that the onus is upon the landlord respondent to rebut the presumptions arising under Section 84(3) in favour of the appellants in respect of the tenure in suit. The appellants are entitled to their costs in this appeal. The previous order in this Court that the costs of the first hearing in the High court and of the hearings in the two Courts below should abide the result, stands good.