Patna High Court
Lakhia Singh Patra And Ors. vs Jotilal Aditya Deo And Ors. on 8 August, 1967
Equivalent citations: AIR1968PAT160, AIR 1968 PATNA 160
JUDGMENT
1. This appeal by defendants 1 to 5 is directed against the judgment and decree of the District Judge of Singhbhum setting aside a judgment and decree of the Munsif and consequently dismissing a suit for declaration of title to and recovery of possession of a culturable area of land measuring 17 bighas 5 kathas 13 dhurs being a portion of khata No. 32 in village Tulasram police station Chandil in the district of Singhbhum.
2. One Harinarain Patar was the recorded raiyat of khata No. 32. He died leaving behind three sons, namely, Mango-binda, Dhananioy and Ramgopal. Mango-binda died leaving a widow named Sarala Patarani (defendant No. 10 in the suit). Dhananjoy and Ramgopal died lone ago. Defendants 1 to 3 are the sons of Dhananjoy and defendants 4 and 4(a) are his two widows. Defendant No. 5 is the son of Ram-gopal.
3. The case of the plaintiff respondent was that after the death of Harinarain his three sons came in possession of the family property, including the suit land. There was a private partition, by which the land described in schedule 2 to the plaint fell to the share of Mangobinda and after his death inherited by defendant No. 10 She held this land for sometime but surrendered it to the landlord on the 22nd October. 1946, under a registered deed of surrender (Ext. 2/a), and the landlord settled the land, which includes the suit land, on the 21st September, 1949, with the plaintiff under a registered deed (Ext. 2/b). It was then alleged that since the surrender the landlord was in possession of the land and since the date of settlement the plaintiff was in possession of the same as an occupancy raiyat thereof.
On the 5th March, 1958, defendants 1 to 5 alone with their labourers who are defendants 6 to 9, are said to have cut away the standing paddy crops from the suit land On account of this occurrence, the plaintiff instituted a criminal case against these defendants, but they were all acquitted As a cloud had been cast on the title of the plaintiff and by the said occurrence the plaintiff was dispossessed by defendants 1 to 5 on the 5th December, 1958, he instituted the present suit The main relief which he claimed has been stated in the beginning of the judgment. He, however, sought an alternative relief for partition by metes and bounds of one-third share in the family land described in Schedule 3 to the plaint, that share being that of the branch of Mangobinda HP also claimed a decree for Rs. 300 against the defendants as the price of the paddy crops cut and removed by them.
4. Defendants 1 to 4 and 4(a), i.e., the descendants of Dhananioy contested the suit. Their defence was that there was never any partition of the family property by metes and bounds; rather, after the death of Harinarain, all his sons held the family property jointly, though, for the sake of convenience, each one of them cultivated some land separately. Defendant No 10 was not in actual possession of the land described in Schedule 2 to the plaint and the deed of surrender, if any, executed bv her must be collusive. The plaintiff never got possession of the land and the same was in possession of Dhananjoy and, after his death, of his widow, defendant No. 4 For convenience of cultivation, she gave the land to defendants 1 to 3 for being cultivated as bhagidars. The allegation regarding theft of the standing crops was denied. It was also pleaded that the alleged surrender and settlement formed part of the same transaction, which contravened Section 46 of the Chota Nagpur Tenancy Act.
5. The learned Munsif found that defendant No. 10 was never in exclusive possession of any family land and that the documents of surrender and settlement were collusive and sham transactions and that the transaction in question contravened the provisions of Section 46 of the Chota Nagpur Tenancy Act. He also disbelieved the other allegations of the plaintiff and dismissed the suit. The learned District Judge, however, decided all the facts in favour of the plaintiff. He held that defendant No. 10 was in possession of the suit land and surrendered it to the landlord and ultimately the plaintiff was in possession of the same on the basis of a settlement made with him. He was, therefore, of the opinion that the plaintiff had proved his subsisting title to the suit land within a period of twelve years. The plea of the defendants in respect of Section 46 of the Act was relected by him on two grounds One of the grounds was that prior to the amendment in 1947 by Bihar Act 25 of 1947 this Act did not apply to the district of Manbhum. The other ground was that, inasmuch as there was a gap of about three years between the date of surrender and the date of settlement, the two did not form Dart of the same transaction and, therefore, there was no contravention of Section 46 of the Act. Lastly, the learned Judge held that, inasmuch as there was no evidence in respect of the amount and price of the standing paddy crops which had been cut away by the defendants, mesne profits should be determined in a subsequent proceeding, because the possession of the defendants after the paddy crops had been cut awav was illegal.
6. Mr. Sarkar, who appeared for the appellants, challenged the finding of the learned District Judge regarding possession. He submitted that the learned Judge had not discussed the evidence regarding possession of the plaintiff, though he had come to the conclusion towards the end of the judgment that the plaintiff had proved his subsisting title to the suit land within a period of twelve years. He has in the previous paragraphs discussed the evidence regarding possession of Mangobinda and his widow Sarala (defendant No. 10) and then accepted the case of surrender to the landlord and settlement bv the landlord with the plaintiff. He has observed that there is not an iota of evidence that Dbananjoy was ever in possession of the suit land and that the plaintiff could not have taken settlement of the land, if defendant No. 10 had not been in possession thereof and she had not actually surrendered the land to the landlord. Reading the entire discussion by the learned Judge, the only inference is that he accepted the case of the plaintiff that he had been in possession of the suit land since at least from the date of settlement and that, before the surrender, defendant No. 10 had been in possession having exclusive possession thereof in her own rights. Hence, this contention of Mr. Sarkar fails.
7. The learned Judge, however, committed an error in respect of his finding regarding the applicability of Section 46 of the Chota Nagpur Tenancy Act. He has observed that this section had not come into force in the district of Manbhum, which included those days the pargana of Patkum, in which the suit land is situated. But it appears that by notification No. 5335, dated the 22nd December, 1908, published in the Calcutta Gazette on the 23rd December, 1908, certain sections of the Act were extended to Par-ganas Barahabhum and Patkum in the district of Manbhum, by the then Local Government, and the whole Act was extended to the district of Manbhum by notification 4010-L. R., dated the 16th December, 1909, published in the Calcutta Gazette on the 22nd December, 1909. As in a number of cases in Manbhum the Act was construed to have affected the existing rights retrospectively notification No. 4010 was rescinded and the Act was re-extended to the district of Manbhum with the exception of certain sections, by notification No. 1929-T.R. dated the 7th October, 1910, in exercise of the power conferred by Sub-section (3) of Section 1 of Chota Nagpur Tenancy Act, 1908. By this notification Section 46 except Sub-section (5) thereof was also extended. Sub-section (5) is, however, not material, because it dealt with transfers made bona fide before the 1st January, 1903. Mr. Roy, who appeared on behalf of the plaintiff respondent, did not dispute the fact that Section 46, except Sub-section (5) thereof, and most of the other provisions of the Act had been extended to the whole of Manbhum district, including the pargana of Patkum, by the aforesaid notification dated the 7th October, 1910.
8. In Sub-section (2) of Section 1 of the Act it was stated that the Act would extend to Chota Nagpur Division, "except the district of Manbhum" and the words quoted were omitted from Section 1 by the amendment in 1947. Apparently, the learned Judge did not see any copy of the Act before 1947 and, therefore, he missed Sub-section (3) of Section 1 of the old Act, according to which the Act or any portion thereof was to be extended to the district of Manbhum or to any part thereof by the State Government by notification.
9. Sub-section (1) of Section 46 of the Act, as it stood in 1946, enacted that no transfer by a raiyat of his right in his holding or any portion thereof shall be valid to any extent except as provided in that section. These exceptions were contained in the subsequent sub-sections. Sub-section (2) provided that an aboriginal raiyat or a raiyat who was a member of a scheduled caste could transfer his right in his holding or any portion thereof by mortgage for a certain period or by lease for a certain period. Under Sub-section (3), an occupany raiyat, who was an aboriginal or a member of a scheduled caste could transfer his right in his holding or a portion thereof by sale or exchange to another aboriginal or another member of the scheduled caste, and who was resident within the local limits of the police station area in which the holding was situated.
According to Sub-section (41, an occupancy raiyat, not being an aboriginal or a member of a scheduled caste, could transfer his right in his holding or any portion thereof to any person who was resident within the local limits of the same police station by sale, exchange, gift, will, mortgage or lease; and a non-occupany raiyat, not being an aboriginal or a member of a scheduled caste, could transfer his right in his holding or any portion thereof to the same extent as an aboriginal raiyat or a raiyat who was a member of a scheduled caste could transfer his right in his holding or portion thereof in accordance with Sub-section (2). Sub-section (5) enabled a raiyat who had transferred his holding or any portion thereof in contravention of the provisions of that section or on the expiration of the period for which he had transferred any part of his holding in accordance with some of the provisions to make an application to the Deputy Commissioner who was empowered then to eject the transferee and place the raiyat in possession. Sub-sections (7) and (8) of the section read as follows:
"(7) No transfer by a raiyat in contravention of Sub-section (2), (3) or (4) shall be registered or shall be in any way recognised as valid by any Court whether in the exercise of civil, criminal or revenue jurisdiction.
(8) No transfer by a raiyat of his right in his holding or any portion thereof by sale, exchange, gift, mortgage or lease shall be valid unless it is made by registered instrument."
It was contended by Mr. Sarkar that in the instant case the alleged surrender and settlement constituted one transaction, viz., the transaction of sale by defendant No. 10 of the suit land to the plaintiff and, therefore, the transaction contravened the relevant provisions of Section 46, and it was void. On the other hand. Mr. Roy submitted that defendant No. 10 was perfectly entitled to surrender the land to the landlord under Section 72 of the Act, and, thereafter, the landlord could legally settle the land with anybody. He disputed the contention of Mr. Sarkar that the surrender and the settlement in the instant case constituted one transaction or that the two transactions were collusive and fraudulent.
10. Several decisions were cited in support of the respective contentions. In Barie Santhal v. Fakir Santhal, AIR 1924 Pat 793 (2) Bucknill J. held that it was open to a tenant under the Chota Nagpur Tenancy Act to surrender his holding for a pecuniary consideration to the landlord and, inasmuch as a surrender is not a transfer within the meaning of Section 46, even where a third party had paid consideration to a tenant as a result of which the tenant had agreed with the landlord to surrender his holding while the landlord had agreed to re-settle the property with the person who had given the consideration to the outgoing tenant, this circuitous arrangement could not in law be regarded as definitely illegal. This decision was considered by Kanhaiya Singh J. in Golap Gadi v. Rampariksha, AIR 1958 Pat. 553, and his Lordship took a different view. It was held by his Lordship that a surrender under Section 72 of the Act was lawful and that, after having accepted the surrender, the landlord is perfectly at liberty to re-settle the holding with some other person or take the land into cultivation himself. But his Lordship further observed that in the case where both the surrender and the subsequent settlement of the land amount to one transaction, the main object of which was to by-pass the statutory provisions of Section 46, the transaction becomes intrinsically invalid, although considered separately the surrender and the settlement may have the appearance of legality.
In this connection, his Lordship relied on the decision of the Judicial Committee in Moti Chand v. Ikram Ullah Khan, AIR 1916 P.C. 59. In that case, the defendants had sold certain zamindari to the plaintiffs and in the sale deed the defendants contracted to relinquish their sir and khudkasht lands and give possession thereof to the plaintiffs or in default the defendants would be liable to damages. In pursuance of the agreement contained in the sale deed, the defendants executed a deed of relinquishment in favour of the plaintiffs of their claim and right in all their sir lands in the mauzas conveyed. They, however, refused to file the deed of relinquishment in the Revenue Court and refused to quit possession of the sir lands of which they continued in possession as ex-proprietary tenants. Hence, a suit for damages and breach of the contract was brought. The main question before their Lordships of the Judicial Committee was whether the agreement to relinquish and surrender their sir lands was lawful. Sub-section (1) of Section 10 of U. P. Act II of 1901 provided that, on transfer of the proprietary rights by sale, the ex-proprietor shall become a tenant with a right of occupancy In his sir lands and in the land which he had cultivated continuously for twelve years at the date of the transfer and shall be entitled to hold the same at a rent determined in the manner laid down therein. By Sub-section (4) of Section 10, such a tenant was called an "ex-proprietary tenant." Section 20 of the Act prohibited transfer of the interest of an ex-proprietary tenant in execution of a decree of a Civil or Revenue Court or otherwise than by voluntary transfer between persons in favour of whom as cosharers in the tenancy, such right originally arose, or who have become by succession cosharers therein. Section 83 of the said Act conferred upon the tenant a right to surrender his holding to the landlord at the end of an agricultural year Sub-section (3) of Section 83 provided that nothing in that section shall affect any arrangement by which a tenant and his landlord might agree to the surrender of the whole or any portion of the holding. On these facts their Lordships of the Privy Council observed inter alia:
"The policy of the Act is not to be defeated by any ingenious device, arrangements or agreements between a vendor and a vendee for the relinquishment by the vendor of his 'sir land or land which he has cultivated continuously for twelve years at the date of the transfer for a reduction of purchase money on the vendor's failing or refusing to relinquish such lands. All such devices, arrangements and agreements, are in contravention of the policy of the Act and are contrary to law and are illegal and void, and cannot be enforced by the vendee in any civil court or in any court of revenue".
Kanhaiya Singh J. observed therefore that the policy of the Legislature in enacting, Section 46 of the Chota Nagpur Tenancy Act was, more or less, the same, namely to secure to the tenants inhabiting the area to which the Act applied their rights in their occupancy holding and to protect them from the avaricious money-lenders; and with due respect we agree with him.
11. There are some unreported decisions too. The earliest one is the decision of Bucknill J. in Second Appeal No. 1030 of 1921. Hagru Kumhar v. Chhukunath Mandal, D/- 11-4-1923 (Pat). His Lordship's view in this case was the same as in the aforesaid case of Bario Santhal, AIR 1924 Pat 793 (2). There are two decisions of Khaleel Ahmad J. In Second Appeal No. 939 of 1961, Jaibir Prasad v. Budhan Rai, D/- 18-4-1963 (Pat) his Lordship seems to have differed from Kanhaiya Singh J. and was inclined to accept the view taken by Bucknill J., though he felt that the question was not free from difficulty Before observing that, as then advised, his Lordship was inclined more to accept the view as laid down in Bario Santhal's case. AIR 1924 Pat 793 (2). His Lordship also referred to the submission of counsel that the question of contravention of Section 46 of the Chota Nagpur Tenancy Act had not been pleaded in the written statement or debated in the trial court and consequently the plaintiffs could not give evidence in support of the view that it was a case which was not hit by Section 46. In the other case, viz., Second Appeal No. 212 of 1961, Syed Yusuf v. Thapa Kole, D/- 22-11-1963 (Pat) Khaleel Ahmad J. again followed the decision of Bucknill J., and was not inclined to accept the view taken by Kanhaiya Singh J. But in none of the aforesaid decisions of Bucknill J. and Khaleel Ahmad J., the decision of the Privy Council in the case of Moti Chand. AIR 1916 P. C. 59 has been referred to.
12. The decisions of Bucknill J., Kanhaiya Singh J. as well as the Privy Council were considered by Mahapatra J. in Second Appeal No. 767 of 1958, Biro Bhumiiani v. Khirode Chandra Mandal, D/- 11-5-1960 (Pat). In this decision, his Lordship has, if we may say so with respect, correctly summarised the legal position thus:
"It will depend upon the circumstances of each case. If it will be found as a fact that all the' transactions which lead from surrender to the possession of the new coming tenant are one and the same transaction, brought about in collusion between the ex-tenant, would-be-tenant and the landlord, then it will be taken to be a device to defeat the statutory provision and the policy of the Legislature as embodied in those provisions. Such device will not be encouraged nor will it be given effect to by the courts as has been held in the case of AIR 1916 PC 59."
13. Let us now examine the facts in the instant case, keeping the said position in law in view. In the deed of surrender (Ex. 5) dated 22-10-1946, Sarala Patarani says:
"I having stood in great need of money for meeting the expenses of litigations prayed to you for permitting me to surrender the said rent paying land in your favour. You granted my prayer and permitted me to make surrender and you desiring to settle the same permanently with Jyotilal Aditya Dev, resident of Ghoralingi (directed him to pay me) Rs. 800 as compensation and according to your order, I received the said amount of compensation from him I surrendered the said land to you and shall, from this day, be fully divested of (all) rights thereto. You shall, from this day, continue to enjoy and possess tbe said land by making permanent settlement thereof with the said Joytilal Aditya Dev. In future I shall have no claim or demand or objection thereto.."
It will be seen from the recital that plaintiff Jyotilal gave Rs. 800 as compensation to Sarala, as directed by the landlord to whom she was making the surrender, and that the landlord would enjoy and possess the surrendered land fry making a permanent settlement thereof with Jotilal This indicates that really the surrender was being made with the object of giving the land to the plaintiff and all the three, namely, Sarla the landlord and the plaintiff were parties to this trans-action. Nothing is important in the deed of settlement (Ext. 2) by the landlord to the plaintiff, except that the landlord received Rs. 500/- as salami for making the settlement. It is an ordinary deed of settlement without any reference to the surrender. It is remarkable that in the trial court the plaintiff (P. W. 9) stated that after the surrender the landlord asked him to cultivate the disputed land on his (landlord's) behalf. He also claimed to have been present at the time of surrender. He said that he was told by Sarla that she was surrendering the land as she was in need of money for the expenses of litigation; she had requested the landlord to settle the land with him (i.e., the plaintiff); she also asked the plaintiff to request the landlord, so that he might settle the land after the surrender with him; and the plaintiff paid Rs. 800 to her as consideration for these matters at the direction of the landlord.
In view of this evidence and the recital in the deed of surrender, it is clear that the surrender and the settlement constituted an ingenious device to circumvent Section 46 of the Act, even though apparently there was a gap of about three years between the date of surrender and the date of the deed of settlement. A direct transfer by Sarala to the plaintiff would have been hit by the provision of that section and, therefore, she and the plaintiff in collusion with the landlord took recourse to this circuitous arrangement. We are, therefore, satisfied from the facts and circumstances of the case that the surrender and the settlement constituted one transaction and were adopted as a device to circumvent Section 46 of the Act.
14. The learned District Judge distinguished the decision of Kanhaiya Singh J. in the case of Golap Gadi. AIR 1958 Pat 553 on the ground that the date of surrender and the date of settlement was the same in the case before his Lordship. Mr. Roy, therefore, laid much stress on the unre-ported decision of Mahapatra J. in the case of Biro Bhumiiani, S. A. No. 767 of 1958 D/- 11-5-1960 (Pat) aforesaid. In that case the surrender had taken place between 1945 and 1947 through three registered documents and the settlement had been made in 1948 After observing that the answer to the question whether these transactions would be said to be one and the same or different transactions would depend on the facts and circumstances of the case. Mahapatra, J. referred to certain facts and came to the conclusion that in the case before his Lordship they did not form part of the same transaction. The first fact mentioned there is the admission of the defendants that the father of the plaintiffs who had taken the settlement came in possession of the land under Khaikhalasi documents executed by their ancestor Pabnu Bhumij which documents preceded the settlement in favour of the plaintiffs' father.
His Lordship then said that this fact was clearly in violation of a case of one transaction. His Lordship referred to the findings of the courts below that the plaintiffs' father came in possession under the settlement taken from the landlord and posed the question as to what happened during the period from 1945, when Pabnu surrendered the land, and 1948, when the plaintiffs' father took the settlement? His Lordship answered this question by observing that the possession of the plaintiffs or their father during that period cannot but be under an arrangement made between Pabnu Bhumij and the plaintiffs' father and that arrangement cannot but be the Khaikhalasi documents, and this fact clearly indicated that the settlement of 1948 was an act independent of the surrender which had taken "place between 1945 and 1947. This is the most important distinguishing feature in that case. There is nothing to explain the possession of the plaintiff in the instant case, except the surrender and the settlement taken together. The fact whether the surrender and the settlement took place on the same day or on different dates even during the period of two or three years cannot by itself justify the inference that the two transactions did not constitute one and the same transaction. Such an inference would give the parties an opportunity to circumvent the law by getting the two documents executed on two different dates or in two different years.
The facts and circumstances, including the evidence of the plaintiff, relating to the surrender and the settlement in the instant case which have been summarised earlier lead to the irresistible conclusion that they formed part of the same transaction. It must, therefore, be held that it was a device to circumvent the mandatory provisions of of Section 46 of the Chota Nagpur Tenancy Act, which prohibits the sale of his holding or a portion thereof by a person of the scheduled caste to one who is neither an aboriginal nor a member of the scheduled caste, inasmuch as it is not disputed in this case that defendant No. 10 is a member of the scheduled caste and the plaintiff is a Kshatriya by caste. We are, therefore, unable to agree with the learned District Judge that the transaction in question was not hit by Section 46.
15. The last submission of Mr. Roy was that the plaintiff is entitled to a decree on the basis of possessory title in view of the finding that he was in possession of the suit land and he had been dispossessed on the 5th March. 1958, by the appellants. Reliance was placed on a bench decision in Govind v, Jagnarain. ILR 30 Pat 1007 :(AIR 1952 Pat 3141 where it was held that possession is good title againsl all but the true owner and a person in peaceable possession of land has, as against everv one but the true owner, an interest capable of being inherited, devised or conveyed Mr. Roy submitted that the plaintiff was entitled to a decree against the appellants, who are not the true owners of the suit land, aa found by the court below. But the principle enunciated above is subject to one important limitation. In support of that principle, Ramaswami, J. (as he then was) quoted an observation of Lord Watson in Sundar v. Parbati, (1890) ILR 12 All. 51 (P.C.) One sentence from the extract nf Lord Watson's observations is important for the instant case: "Their possession was lawfully attained, in the sense, that it 'was not procured by force or fraud,' but peaceably, no one interested opposing."
Mr. Sarkar has drawn our attention to the underlined (here into ' ') words and submitted that, inasmuch as, in the instant cast a fraud was practised by the plaintiff in collusion with defendant No. 10 and the landlord, he is not entitled to the aid of the court; and in support of this submission he relied on a few decisions, of which it will be sufficient to refer to the decision of the Supreme Court in Kedar Nath v. Prahlad Rai, AIR 1960 S.C. 213. Their Lordships of the Supreme Court approved the observations of Lord Mansfield in Holman v. Johnson, (1775) 1 Cowp. 341, 343 : 98 E. R. 1120, 1121:
"The principle of public policy is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own tating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the court goes: not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis."
These observations support the contention of Mr. Sarkar. In the instant case, the plaintiff did not base his claim on Dossessorv title rather, he sought the relief? claimed on the basis of the surrender and the settlement which have been found to have formed part of the same transaction and to have been fraudulently brought into existence as a device to circumvent the mandatory provisions of Section 46 of the Chota Nagpur Tenancy Act, Hence, the plaintiff can-not succeed in the instant case on the basis of possessory title.
16. Another contention of Mr Sarkar, was that the learned District Judge committed an error in granting a decree for mesne profits to be determined in a subsequent proceeding, inasmuch as no such, claim was made in the plaint: and this contention must also prevail.
17. Incidentally it may be mentioned that nothing in this judgment shall affect the interest of defendant No. 10 as against the appellants in respect of the disputed land, inasmuch as, in our opinion, it is not necessary for us to decide any question in respect of the same.
18. In the result, the appeal is allowed and the suit is dismissed with costs throughout payable to the appellants in this court.