Patna High Court
Joy Narayan Chandra And Ors. vs Murari Mohan Chakrabarty And Ors. on 3 May, 1935
Equivalent citations: 164IND. CAS.293
JUDGMENT
1. Two bighas 2 cottas 5 chittaks 14 square feet of land together with structures thereon constituting premises Nos. 45-2 and 45-4, Diamond Harbour Road, having been acquired under the Land Acquisition Act a sum of Rs. 50,000 (fifty thousand) and odd was assessed as the value of the land including statutory allowance. The Collector made an award in respect of the' amount in favour of the Kamani Industrial Bank, Ltd., as lakhe-rajdars owners. On applications made by several parties as claimants the matter came up on reference under Section 18 of the Act before the Calcutta Improvement Tribunal. The controversy in the reference was eventually reduced to a contest as amongst 4 sets of parties, namely claimants Nos. 1, 2,4 and 5. Claimant No. 1 asserted that the whole of the land was included in their Touzis Nos. 3, 8 and 10; claimant No. 2's case was that an undivided one-sixth of the land appertained to his Touzi No. 16; and claimant No. 4 pleaded that another undivided one-sixth share of the land fell within their Touzi No. 51. The Kamani Industrial Bank, Limited, was the claimant No. 5.
2. The Collector in his award noted that the entire quantity of land constituted a lakheraj holding appertaining to Touzis Nos. 33, 51, 53, 91, 1 to 6 and 8 to 16. The President of the Tribunal having upheld the award, the claimants Nos. 1, 2 and 4 have preferred these appeals. Appeal No. 273 has been preferred by claimant No. 1, No. 274 by claimant No. 4 and No. 275 by claimant No. 2.
3. The argument addressed to us on behalf of the appellants in these appeals is that the Collector had no materials on which he could find that the claimant No. 5 had a rent-free title; that the land having been found by the Collector to appertain to touzis of which the appellants are proprietors it was for the claimant No. 5 to prove that he was a rent-free holder and he has failed to discharge that onus that the lakheraj or revenue free title which the claimant No. 5 had set up was not established and that the claimant No. 5 had in fact proved nothing which would justify a decision awarding him the compensation in deprivation of the, appellants to whose touzis the lands appertained.
4. Now, it is true that in one or two passages in his judgment the learned President in expressing himself on the question of onus was not quite happy in choosing the words he used but there can be no doubt whatever as to what he meant. His findings are clear and are amply borne out by the materials on the record.
5. Claimant No. 5 in his written statement after stating that the land originally appertained to the estate of the Bhukailas Raj as a Siddha lakheraj holding and setting out how he came to acquire it pleaded that assuming but not admitting that the land appertained to the touzis of the appellants, the claims of the appellants were barred by limitation and adverse possession He then stated:
As far as your petitioner has been able to ascertain by enquiries the land in question is lakheraj, but that if it is found to have formed part of a tenancy at all under all or any of the contending claimants its character would be found to be mourashi mokrari.
6. This no doubt shows that the claimant No. 5 was not quite certain as regards the real character of his title. That, however, is not altogether unexpected, for he has acquired it only in 1926. The averment implies a statement of fact, about which there can be no doubt, that no rent or revenue has ever been paid for the land. In the Record of Rights finally published in 1910 (Exs. 8 and 9) the plot is described as non-agricultural, and as a bastu consisting of 2 tanks and 16 thatched rooms and as niskar which may mean either revenue-free or rent-free in the name of a lady of the Bhukailas Raj family. The appellants are entitled to say that the entry should be read as meaning rent-free only. The Collector in his award has, as already stated, noted it as lakheraj appertaining to the several touzis but has allowed no abatement of the revenue of the touzis saying: "As the land is lakheraj no Statement of Government revenue is allowed". The award, therefore, treats the land as revenue-free. He has also produced certain conveyances in proof of the title of himself and of his predecessors: Ex. A-d 1915, Ex. B-d 1919 Ex. C-d 1922, Ex. D-d 1926. In the first, third and fourth of those documents, which are in English, the, lands are described as rent-free, while in the second, which is in Bengali, it is described as valid lakheraj and niskar lakheraj. This practically is all that the claimant No. 5 has shown. Even though the statutory presumption would not attach , to the entry in the khatian, as the land concerned is non-agricultural and bastu, the entry is a piece of evidence of no slight value for it was made on the basis of an investigation conducted with publicity and notoriety. That entry if relied on would establish the rent-free character of the land. The statements in the four conveyances referred to above are hardly any evidence as against the appellants and so need not be taken into account. The Collector, in his award, treated the land as lakheraj.
7. Now let us turn to the appellants and see what they have shown. They challenge the award and so they have to show that it is wrong. Moreover, they are claimants and so have to establish their respective claims. To establish that the land lie's within their touzis, they have to rely on the Record of Rights, the value of the other entry in which namely 'nishkar' they repudiate by alleging that the settlement operations were held without their knowledge but to establish which allegation they have brought most unconvincing evidence. It may be taken as established that the land lies geographically within the ambit of the touzis. But no evidence has been adduced on behalf of the appellants to show that the land forms a part of the trial lands of any of the touzis. To show that the touzis had anything whatever to do with the lands, they have to rely entirely upon Record of Rights and read the entry 'nishkar' in it as rent-free. It has not been claimed on their behalf that any rent was ever realised by them or any of them in respect of the land. And if one proceeds to examine the oral evidence which they have adduced to prove their title and possession, one is surprised at the worthlessness of its character (vide the evidence of Narain Chandra De, Satis Chandra Sinha and Palan Chandra Ghose).
8. In these circumstances it has to be held that the appellants have, unless they fall back on the Record of Rights, proved nothing which would entitle them to any share in the compensation money. If the Record of Rights is relied on they are the proprietors but the claimant No. 5 has rent-free right in it.
9. The only doubt that one feels in this case is whether the claimant No. 5 has a lakheraj (revenue-free) or a nishkar (rent-free) right in the land. But whichever view is taken the result, in our opinion, must be the same. There have been several transfers in respect of the land without any interference, and everything points to permanency in the character of the rights of the holders. In such circumstances the value of the chances of reversion, which is all that the proprietor is entitled to, is practically nil.
10. In our judgment, therefore, the learned President was right in affirming the Collector's award.
11. The appeals are dismissed with costs hearing-fee being assessed at three gold mohurs in each case.