Patna High Court
Aditya Prasad And Ors. vs Parmananda Patel And Ors. on 15 January, 1919
Equivalent citations: 53IND. CAS.96, AIR 1919 PATNA 409
JUDGMENT Miller, C.J.
1. The plaintiffs Debi Prasad Patnaik and his two brothers are the gountias of Mauza Sudhamal in the Sambalpur District. In the year 1915 they filed ft suit in the Mansif's Court at Sambalpur to eject the defendants as ordinary tenants from their bhogra lands and to recover khas possession. The defendants pleaded that they were not ordinary tenants; that about 50 years ago the lands in suit, together with some raiyati lands, were leased in perpetuity at a yearly rental of Rs. 1180 to Dakhu, the great grandfather of the defendant No. 1, and one Damodar by Balmakund Patnaik, a former gountia of the village; that the land in suit had remained in the possession of the defendants' family ever since, the bhogra lands paying an invariable rent of Rs. 9, the rent of the other parcel, which was raiyati land and subject to enhancement, having been from time to time enhanced; that the bhogra lands were afterwards divided between the lessees, the portion of the defendants' grandfather coming into the possession of defendant No. 1, the other defendants being his co-sharers; that this lease bad been granted on the express condition that the lessees should construct a tank and a kata in the village for the use of the villagers and for the improvement of the land, and that these conditions were duly fulfilled. They contended that the defendants, being tenants in perpetuity, were not liable to ejectment. The Munsif as well as the Subordinate Judge of Sambalpur, before whom the case came on appeal, found that the lease relied upon by the defendants was in fact granted, and dismissed the suit. On appeal to the High Court the case was reminded to the lower Appellate Court for the purposes of ascertaining whether Balmakund, the original lessor, had power to grant the lease in perpetuity binding his successors. The answer to this question would depend upon the nature of the interest held by Balmakund. The case was remanded with directions to the lower Appellate Court to answer the following questions:
(1) Had Balmakund a permanent or a temporary tenure as gountia in the lands in suit?
(2) If so, was it heritable?
(3) Do the plaintiffs claim to eject the defendants by right of inheritance as gountia in respect of Balmakund's interest? If not, do the plaintiffs claim under any other title to eject? (4) Have the plaintiffs or their predecessors acquired the status of protected gountia under Section 65(a) of the Central Provinces Tenancy Act?
2. The lower Appellate Court had power to take further evidence on these points, if necessary. No further verbal evidence was adduced before the Subordinate Judge on remand, but copies of two orders passed by Mr. Bowie, Deputy Commissioner of Sambalpur in 1870, and by Mr. A.M. Russell, the Settlement Officer in 1878, relating to the proprietary rights of the gountia in Mauza, Sudhamal were referred to, as well as Mr. Russell's Reports on the Land Revenue Settlement of the Sambalpur District of 1875-1877 and the Settlement Reports of 1885 to 1889 and Mr. Dewar's Report of 1906. From these documents it appears that the village in question was at first granted mafi to the Patnaik family by the native Government but was subsequently assessed to land revenue. It, however, continued in the Patnaik family passing succession from one member to another until 1858, when the then gountia, being unable to pay the revenue, made over his interest in the village to Balmakund, and the order of Mr. Bowie, already referred to, recognised the proprietary right of Balmakund Patnaik in Mauza Sudhamal. What the exact interest of the gountias of this village was in the property before that date is, perhaps, a matter of conjecture. It was contended that according to the Settlement Report of Mr. Russell the gauntias of Sambalpur were at first merely lessees holding under temporary leases, and that proprietary rights were not conferred on them until 1870. The learned Subordinate Judge came to the conclusion from a perusal of the history of this particular village that Balmakund was recognised as proprietor in 1870, and that even before that he and the Patnaik family had a heritable right to the village and not merely a temporary tenure. His answer to the first question, therefore, may be taken as being that Balmakund had a permanent not a temporary tenure as gountia in the lands in suit, and his answer to the second question was in the affirmative. In answer to the third question he found that the plaintiffs claimed to eject the defendants by right of inheritance as gountias in respect of Balmakund's interest and not under any other title. His answer to the fourth question was in the negative.
3. From this judgment the plaintiffs appealed to the High Court and contended in effect that the evidence adduced before the lower Appellate Court did not support the findings of the learned Judge. It was contended that the Settlement Reports, and especially that of Mr. Russell, clearly shewed that before 1870 the proprietary right in the village belonged to Government or to the zemindar and that the gountias had no permanent transferable interest even in the bhogra lands, and that it was not until 1870 that the proprietary right in the bhogra, lands was-given to the gountias, and that as the lease in question was granted 50 years ago, i.e., before 1870, Balmakund had no interest at that time which would entitle him to grant a permanent lease binding upon his successors. The respondents contended, firstly, that the evidence was quite sufficient to justify the conclusion that even before 1870 the gountias had a permanent transferable right in the bhogra lands, and, secondly, that even if their proprietary right was not conferred until 1870 the transferor, having acquired a permanent transferable interest, at all events in 1870, the transfer must be taken to operate on the interest then acquired, Balmakund the transferor being then alive, and that Section 43 of the Transfer of Property Act was applicable to the circumstances of the present case. On referring to Mr. Russell's report and the correspondence annexed thereto, it appears that the question of resettling the land revenue of Sambalpur was taken up by Mr. (afterwards Sir Richard) Temple in 1862, when settlement operations were commenced throughout the provinces, and orders were issued by him for making a settlement on precisely the same principles as those followed in other districts, the characteristic of which was that the village headmen or gountias were to be made proprietors of their villages and given rights of transfer. An open declaration of this policy was made to the gountias by proclamation at Sambalpur in 1862, and settlement operations were then set on foot but owing to the death of Major Impey, the Deputy Commissioner in 1861, little progress was made. His successor questioned the principles on which the settlement was to be made and a voluminous correspondence ensued, which did not close until 1672 and ended in the making of a settlement on a basis different from that of any-other in the provinces. In the result it would appear that the principle followed in the settlement was that the proprietary rights which were conferred upon gountias in 1862 were limited to their bhogra lands. Although the order made by Mr. Bowie in 1870, which concerned a dispute between Balmakund Patnaik and another claimant to the proprietary rights in Manza Sudhamal, in terms purports to confer proprietary rights in that village on Balmakund, it may well be that even before that date such rights had been recognised in the gountias of that village in accordance with a proclamation made in 1862, the terms of which were repeated and confirmed by the Chief Commissioner in a public darbar held at Sambalpur on the 9th March 1863. Indeed, the decision of Mr. Bowie appeared to be based upon a consideration of the history of the gountiahi rights acquired by Balmakund's predecessors. However this may be, once it is admitted that Balmakund acquired a permanent transferable interest in the property in 1870, in my opinion Section 43 of the Transfer of Property Act will apply, so that the transfer made before 1870 would operate on the interest which the transferor acquired in the property at that date, so as to create in the lessees a permanent transferable interest.
4. It was contended, however, that by Section 69 of the Central Provinces Tenancy Act, 1898, the defendants were liable to be ejected from their holding on the ground that it consisted entirely of nr lands. Bhogra land is, under the provisions of Section 4 (a) of the Central Provinces Land Revenue Act, comprised in the term sir land, but in my opinion there is nothing in the terms of Section 69 of the Tenancy Act from which it may be inferred that every tenant holding sir lands is on that account liable to be ejected. The Section itself is introduced in the interest of the tenant and restricts the landlord's right of ejectment except in three cases, one of which is where the ejectment is in execution of a decree passed on the ground that the holding consists entirely of sir lands. There are undoubtedly certain cases in which the landlord's right to eject tenants from his sir land is recognised, but I can find nothing either in the land Revenue Act of 1881 or in the Tenancy Act of 1898 restraining the proprietors of such lands from granting permanent leases, and where a suit is brought to eject a tenant of bhogra land, there is nothing in Section 69 of the Tenancy Act which would bar the defendant from setting up a lease granted by the proprietor himself. In the present case it has been found as a fact that the lease was granted, and in my opinion there is sufficient evidence on the record to justify the finding of the lower Appellate Court that the plaintiff's predecessor had a permanent transfer, able interest which would entitle him to grant the lease in question. In my opinion this appeal must be dismissed with costs.
Mullick, J.
5. I agree.