Patna High Court
Kabir Ram And Anr. vs Giro Mahto And Ors. on 25 August, 1937
Equivalent citations: 174IND. CAS.283, AIR 1938 PATNA 174
JUDGMENT Wort, J.
1. This is an appeal from the decision, of the Judicial Commissioner of Chota Nagpur arising out of an action in which the plaintiffs claimed possession of a holding treating the defendants to be under-raiyats within the meaning of Section 4, Chota Nagpur Tenancy Act (VI of 1908). I mention the definition in Section 4, although it is one of the contentions of Mr. De appearing on behalf of the appellants that the Act of 1908 does not apply to the circumstances of this case. There are two substantial points for determination, the first is whether the defendants, as they pleaded, were occupancy raiyats; and, secondly, whether the Civil Court had jurisdiction. The latter question was not raised in the Courts below but it is raised here. A decision of Adami and Das, J.J. reported in Madhab Poddar v. Lal Singh Bhumji 8 P.L.T. 231 : 97 Ind. Cas. 175 : A.I.R. 1926 Pat. 403 : 6 Pat. 69, is relied upon for contending that the Civil Court had no jurisdiction. A further decision of this Court in Jageshwar v. Tilakdhari 5 P.L.T. 422 : 77 Ind. Cas. 587 : A.I.R. 1924 Pat. 267 : 2 Pat. 746, to the same effect is also relied upon. In this latter case the plaintiff sought to eject a non-occupancy raiyat and the learned Chief Justice in the course of his judgment said as follows:
The suit as framed was one to eject trespassers, but on the facts found the defendants were not trespassers but non-occupancy raiyats. As no suit to eject non-occupancy raiyats could be tried in the Civil Court the question of the plaintiffs' rights against them could not be determined in the present suit;
2. and he held accordingly. Now the sections to be considered in this regard are Sections 46, and 139, Chota Nagpur Tenancy Act. I should have mentioned also Section 68 with Section 139, which by Clause (4) provides:
all suits and applications under this Act to eject any tenant of agricultural land or to cancel any lease of agricultural land.
and by (4-A):
all suits for ejectment of a trespasser where the plaintiff claims as alternative relief that the defendant be declared liable to pay for the land in his possession a fair rent.
3. These are two classes of cases which under t he Act are excluded from the jurisdiction of the Civil Court. Then we come back to Section 68 of the Act which provides:
No tenant shall be ejected from his tenancy or any portion thereof except in execution of a decree or in execution of an order of the Deputy Commissioner passed under this Act.
4. Then comes Section 46 and it is sought by the respondents to bring this case under Clause (4) of that section which runs as follows:
At any time within three years after the expiration of the period for which a raiyat has, under this section, transferred his right in his holding or any portion thereof, the Deputy Commissioner may, in his discretion on the application of the raiyat, put the raiyat into possession of such holding or portion in the prescribed manner.
5. The question therefore to be determined is whether within the meaning of Section 139, Chota Nagpur Tenancy Act, Clause (4) and (4-A), it is a suit or application "under the Act". There has been an argument addressed to us by the appellants which rather surprises me having regard to the provisions of Section 139, Clause (4 A). It, is contended that the defendants are mere trespassers. If the defendants are to be considered trespassers simpliciter, then the plaintiffs can bring an action for the ejectment of the trespassers coming within Clause (4-A) of Section 139 of the Act. But I am confident that the Legislature never intended this part of the Act to be construed in that way. If a plaintiff is entitled to eject a person, whether he has been a tenant or not, the mere fact that he is entitled to eject him and have a decree to that effect signifies that the defendant is a trespasser. Therefore in that sense all persons against whom such a claim arises are trespassers and will prima facie come under Clause (4-A.) of Section 139. But I am equally confident that what the Legislature intended to provide for that class of cases is that the person sought to be ejected as a trespasser is one who has gone upon the land with no sort of right and was trespasser ab initio. Then we come back to Section 46. Mr. De contends that he does not come within the mischief of Section 46, because at the time when he made the transfer in 1901 neither the present Act (VI of 1908) nor the Chota Nagpur Landlord and Tenant Procedure Act I of 1879) had come into force. The Amending Act came into force in 1903 by the new section which was added to the original Act being 10-B which by Clause (4) provides:
At any time after the expiration of the period for which a raiyat has under this section, transferred his rights in his holding or any portion thereof, the Deputy Commissioner may, in his discretion, on the application of the raiyat, put the raiyat into possession of such holding or portion.
6. Mr. De argues, and in my judgment correctly argues, that he does not come within that amendment: in other words, although the cause of action which he is now asserting arose after 1908, it was not a cause of action in respect of a matter which was provided for either by the Act of 1908 or that of 1903, and he is, therefore, not met with Clause (4) of Section 139 of the present Act in the suit nor is he making a suit or application under the Chota Nagpur Tenancy Act. I should have stated that as the basis of the argument with which I am dealing, Mr. De contended that the cause of action arose on June 4, 1904, when the lease or kabuliyat to the defendants expired. That argument in my judgment is untenable. It is true that the moment after the lease had expired, the plaintiffs could have ejected the defendants but when they accepted rent that cause of action disappeared and the present cause of action is one which is based upon the alleged notice to quit to the defendants.
7. Now, the other question is whether the defendants have occupancy rights. One of the last arguments addressed to us was an assertion of those rights by reason of occupation for a period of 12 years. That argument cannot be supported. The plaintiffs themselves are occupancy raiyats and the defendants cannot acquire occupancy rights which properly belonged to their landlords the plaintiffs, during the period for which they having recognized the landlords title by payment of rent. That in my judgment is a sufficient answer to that point. But it is now contended that the judgment of the learned Judge in the Court below was correct because the Judge there said that the entry in the Record of Rights was correct and that although the Settlement Officer stated those rights to have arisen under the kabuliyat, there might have been some other evidence. The matter will be clear by making one or two statements. First of all the presumption of correctness attaches to the entry and to nothing else. The statement in that entry is rebuttable. In this case it was quite clearly held by the trial Judge and in that respect. I am of the opinion that he was right, that no such rights arose under the kabuliyat. The suggestion that there might have been evidence other than thekabuliyat itself is precluded by the statement in the entry that the occupancy rights arose under the kabuliyat. When once therefore the kabuliyat is produced and the rights are shown not to come into existence by reason of that kabuliyat, it seems to me quite clearly that the entry is rebutted. In my opinion whichever way one looks at this case, it is quite clear that the defendants had no occupancy rights. It is suggested that they were not possessed of full occupancy rights (to use the expression of the argument) but something short of them. If that is so, there is a clear authority of this Court that such rights of an original tenant are not heritable and it will be necessary for the defendant who is the son of the original tenant to acquire them by custom or otherwise, in other words the son., could not take advantage of such rights as his father possessed. There is no evidence of custom here as the learned Judge of the trial Court pointed out and therefore on that footing also the defendants have failed to establish their rights. The learned Judge in the Court below is in error when he states that the onus was on the plaintiffs.
8. As to notice to quit, the trial Judge came to the conclusion that there was no notice, or at least, if there was any, it was not proved. The Appellate Court is uncertain as to that matter and has not decided it. In my judgment, reasonable notice is necessary and therefore there should be a decision on that question. The matter will, therefore, go back to the learned Judicial Commissioner to determine the question whether a notice to quit has been served on the defendants. If he finds that such a notice has been served, the plaintiffs will be entitled to judgment. With these observations I would remand the case for the determination of that question and the costs of this case will abide the result of hearing in the Court below.
Varma, J.
9. I agree.