Patna High Court
Ramadhar Upadhya And Anr. vs Baldeo Ahir And Ors. on 15 January, 1976
Equivalent citations: AIR1976PAT349, AIR 1976 PATNA 349
JUDGMENT B.D. Singh, J.
1. Ramadhar Upadhya and Lakshman Upadhya, the two appellants, had obtained a decree for Rupees 11643-27 paise on account of mesne profits besides costs in T. S. 74 of 1952 in the court of Munsif, 2nd Buxar. The appellants had executed the said decree in Title Execution Case No. 23 of 1968 and sought to realise the aforesaid amount of decree for mesne profits and costs by sale of 7.31 acres of lands belonging to the judgment-debtor-respondents.
2. The respondents filed an objection on the grounds, inter alia that they being under-raiyats, their lands could not be sold in execution proceeding. On their objection, a Misc. Case No. 40 of 1968 was registered and the seme was disposed of by the 2nd Munsif, Buxar, by order dated 31st May, 1969. The learned Munsif came to the conclusion that the lands comprised in plots Nos. 48, 82 and 84 alone could be sold in the execution proceeding, as on the lands under those three plots, the respondents' interest was not that of a sikmidar, that is, not that of under-raiyat. Regarding the lands covered by plots Nos. 132, 133, 104, 50, 58 and 169, he held that the respondents had acquired sikmidars' interest and, therefore, they were released from the execution proceeding. Aggrieved by the said order, the appellants had preferred an appeal. The appellate court also came to the same conclusion and affirmed the order passed by the learned Munsif.
3. Learned counsel for the appellants assailed the judgment of the learned court below and contended that the learned Judge has erred on the question of law. According to him, if a under-raiyat acquires occupancy right, the occupancy holding can be sold in execution proceeding. The other question of law which he has raised is that it was incumbent upon the court below to come to a finding firstly that the sale proceeds of the land comprised under plots Nos. 48, 82 and 84 would be sufficient to meet the decretal amount. If the finding was that the sale proceeds would be sufficient, then only in that circumstance, the court below could have released the Land comprised in other plots from the execution proceeding. In the instant case, since there has been no finding in that regard, the judgment, according to him, is not in accordance with law.
4. I will take up for consideration point No. 1. Learned counsel for the appellants in order to find support to his contention under point No. 1 has relied upon the decision in Munilal Mandal v. Babuje Mandal (1963 BLJR 90) where Ahmad, J. while considering the provisions of Section 48-C of the Bihar Tenancy Act (Act VIII of 1885) (hereinafter referred to as 'the Act') observed that when Section 48-C was enacted the undertenant and after him heirs and successors had already been in possession of the said land for a period much more than 12 years. In that view of the matter it must be held that by the time the sale deed in favour of the plaintiff came into existence, the under-raiyat of the land in dispute had already acquired occupancy rights and was quite competent to convey valid title to the transferee. The right of occupancy given to under-raiyat is of the nature of a right of property and, therefore, any sale made thereof is binding at least against a third party, though with a right of veto in favour of the landlord. Relying on the above observation, learned counsel for the appellants submitted that if the respondents had acquired occupancy right, that was in the nature of a right of property and that could have been sold in accordance with law in the execution proceeding. On the other hand, learned counsel appearing on behalf of the respondents has relied upon a Bench decision of this Court in Shrikrishun Lal v. Harihar Sah (AIR 1949 Pat 444) where Agarwala, C. J. and Meredith, J. were considering the various provisions contained under the Act in order to find out the status of a under-raiyat. Learned counsel for the respondents drew my attention to the observations made in paragraphs 11 to 13 which read as follows:--
"(11) The matter may be looked at from another aspect. In Section 5, Tenancy Act 'Raiyat' is defined as primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants, or with the aid of partner that is to say, a raiyat must be a person who holds his land for agricultural purposes. 'Under-raiyat' is defined in Section 4 (3) as a tenant holding, whether immediately or mediately, under a raiyat. There is nothing to show he must be a person also holding for agricultural purposes. By definition, everyone holding under a raiyat, for whatever purpose, will be an under-raiyat, and so governed by the Act. This was the basis of two Calcutta decisions, Babu Ram Ray v. Mahendra Nath Samanta, (1902) 8 Gal WN 454 and Abdul Karim Patwari v. Abdul Rehaman, (1912) 15 Cal LJ 672 = (13 Ind Cas 364) where the same view was adopted as in Jado Singh v. Bishunath Lal Kanedia Marwari, 22 Pat LT 821 = (AIR 1942 Pat 71).
(12) It follows that the applicability of the Bihar Tenancy Act is not excluded upon either of the grounds put forward; and the court below is wrong in holding to the contrary.
(13) Once it is held that the Tenancy Act is applicable, the next question which arises is whether Akli, the under-raiyat having an occupancy right, could transfer it to the defendant 1. Upon this point, there is & decision of Rowland J. in Abass Khan v. Sheikh Mohammad Hussain, 22 Pat LT 749 = (AIR 1941 Pat 593) and though that learned Judge was sitting singly, I find myself in complete agreement with his reasoning. There is no provision in the Tenancy Act under which an under-raiyat can transfer his interest unless Section 26-A is applicable. Section 26-A makes an occupancy holding transferable. Does it apply to an under-raiyat?--only if an under-raiyat, having an occupancy status, has an occupancy holding within the meaning of the Act. 'Holding' is defined in Section 3 (9) as a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. Under this definition, only a raiyat can have an occupancy holding, and 'raiyat' does not, and cannot include 'under-raiyat' as is clear from Section 5 (3) which says:
"A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder."
Their Lordships in paragraph 14 of the judgment held that the right to transfer of an under-raiyat, no doubt, depends upon the custom prevailing in the locality. If there is any such custom, the custom would supersede the law. But learned counsel for the respondent submitted that in the present case there is no such pleadings with regard to the custom. In the absence of such pleadings, the question whether the respondents had any such right to transfer cannot be decided. Prima facie, there appears to be conflict in the decisions relied upon by learned counsel for the parties. Learned counsel for the appellants, as mentioned earlier, has relied upon the decision in 1963 BLJR 90, I have already mentioned that, that is a decision by a learned Single Judge whereas the decision on which reliance has been placed on behalf of the respondents is of a Division Bench which has not been referred or distinguished in 1963 BLJR 90, In that view of the matter, I am bound by the observation made in the Division Bench case. In that view of the matter, according to me, the submission of learned counsel for the respondents is well founded.
5. Reference may also be made to the provisions of Section 48-D of the Act which reads thus:
"Rights of occupancy under-raiyat--An under-raiyat who has acquired a right of occupancy in any land under Section 48-A shall be subject to the same provisions with respect to rights in trees end bamboos and the use of, succession to, and eviction from, such land as an occupancy-raiyat."
Section 48-C should be read along with the provisions contained in Section 48-D of the Act. It is well settled that the Act should be read as a whole. Section 48-D of the Act limits the rights of under-raiyats wherein it is clearly mentioned that the right of under-raiyat 'shall be subject to the same provisions with respect to rights in trees and bamboos and the use of, succession to, and eviction from, such land as an occupancy-raiyat'. The provisions contained under Section 26-A of the Act, therefore, are not included in Section 48-D. It is only under Section 26-A that an under-raiyat's sikmi right could have been transferred. It will be useful to reproduce Section 26-A of the Act which reads thus:
"Transfer and bequest of occupancy-holdings or portions thereof-- (1) Every occupancy holding or a portion thereof, together with the right of occupancy therein, shall be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property, and all transfers made by sale, exchange or gift and all bequests shall, subject to the provisions of Sub-section (2), be binding on the landlord.
(2) Every transfer of a occupancy holding or a portion thereof, together with the right of occupancy therein, by sale, exchange or gift and every bequest of such holding or portion together with the right of occupancy therein, shall be made in the same manner and subject to the same conditions as a permanent tenure in respect of registration and the payment of landlord's registration fee."
Under Section 48-D, Sections 23-A, 23, 26 and 25 of the Act are referred to by implication. Therefore. in my opinion, there is no merit in the contention of learned counsel for the appellants under point No. 1.
6. Now I advert to consider point No. 2. In order to meet his submission, learned counsel for the appellants has relied upon a Bench decision of this Court in Sheikh Md. Yusuf v. Sib Narayan Ghosh, 1954 BLJR 132 = (AIR 1954 Pat 308) where Imam, C. J. and Das, J. (as they then were) were considering the provisions contained in Section 48-A and the second proviso to Section 162-A of the Act. Their Lordships observed that where there was an incumbrance on any portion of a holding, the Court shall not order such portion to be sold unless in its opinion the decree cannot be satisfied without the sale of such portion. Their Lordships further held that the provision was mandatory, The statute, according to their Lordships, gave protection to an under-raiyat to a certain extent, namely, that the portion of the holding which concerned him would not be sold unless the Court was of the opinion that without its sale the decree could not be satisfied. Learned counsel for the respondents, on the other hand, contended that the above observations of their Lordships are not applicable in this case as their Lordships were considering in that case a rent decree. Obviously when there is a decree, the entire holding of a raiyat is sold and if the raiyat has inducted under-raiyat a sort of incumbrance is sought, and in a rent decree when it is put into execution, the entire incumbrance is wiped of. In that circumstance, the above observation was made that firstly the Court has to find out whether a rent decree can be satisfied by selling lands belonging to the tenant himself. If the sale proceeds would not be sufficient, then alone the lands belonging to the under-raiyat can be sold and for that reason such a finding of the Court was held to be mandatory. In the instant case, learned counsel for the respondents submitted that there is nothing to show that the appellants had obtained a rent decree. In my view the submission of learned counsel for the respondents is correct. The observation made by their Lordships in 1954 BLJR 132 = (AIR 1954 Pat 308) (supra) will therefore, be not applicable to the present case.
7. After a careful consideration, therefore, I find no merit in appeal which is, therefore, dismissed. I will pass no order as to costs.