Patna High Court
Gopal Ojha And Ors. vs Ramadhar Singh Alias Lalji Singh And ... on 17 June, 1924
Equivalent citations: 82IND. CAS.204, AIR 1925 PATNA 228
JUDGMENT Jwala Prasad, J.
1. This appeal arises out of a claim for resumption. The plaintiffs are the appellants. The following genealogy culled from the evidence of Ramadhar Singh, defendant No. 1, which is not challenged, may be useful and is accordingly set out in the beginning.
Pryag Singh Janki Singh Achambhit Singh Bhupan Singh,
| | (his branch has (in his branch
| | become extinct. are his great-
| _______|________ grandsons, Amar
| | | Dyal Singh,
| Hari Singh, Rampadarath, defendant No. 2
| (predeceased, Singh, (died) and Nand Keshwar
| Kampadarath Left two widows, Singh, defendant
| Singh) Musammat Hardasi No. 3.)
| and Radhika Kuer.
|_______________________________
|
__________________________________|______________________
| | |
Tulsi. Isri. Banwari, (died childless).
| |
Bamadhar Singh, ..................
defendant No. 1. Ramautar.
|
Amarnath, (not made party).
2. Thus defendants Nos. 1, 2. and 3 have been recorded in the Record of Rights prepared at the last Survey in 1917 as being in possession of the properties as mukarraridars, 8 annas in the name of defendant No. 1 and 8 annas in the names of defendants Nos. 2 and 3. The tenure has been recorded as mukarri istamrari not resumable. The aforesaid entry is the result of a decision arrived at by the Assistant Settlement Officer dated the 6th March 1917 (Exhibit 5) in a hotly contested dispute between the parties. The decision was upheld on objection under Section 83 of the Bengal Tenancy Act by the Assistant Settlement Officer in charge by his decision (Exhibit 6) dated the 17th of June 1917.
3. The defendant No. 4 Babu Chain Singh, is alleged in the plaint to be the son of Babu Sheosagar Singh by a daughter of Rampadarath Singh. Both the plaintiffs and the defendants Nos. 1 to 3 disputed the relationship of defendant No. 4 with Rampadarath Singh and the Court below has held that the relationship has not been established: that this defendant, who was made respondent in this appeal, entered appearance and filed a cross objection challenging the decision of the learned Subordinate Judge so far as it affected him. He is, however, dead and in his place one Sahdeo Singh has been substituted at the instance of the appellants. Notice was served upon him, but he has not entered appearance nor has he contested this appeal.
4. Respondent No. 1 Babu Ramadhar Singh and respondent No. 3 Babu Nandkeshwar Singh, are also dead and in their place their respective heirs and legal representatives have been brought on the record. Therefore, this appeal is contested principally by the legal representatives of respondents Nos. 1 and 3, and respondent No. 2. They have lodged a cross-objection with respect to the issues that have been decided by the Subordinate Judge against them.
5. Shortly speaking, the plaintiffs dispute the correctness of the entries in the Record of Rights referred to above and in fact they base their cause of action upon the decision of the Assistant Settlement Officer in charge dated the 17th June 1917. They say that they have been all along in sir possession of both the mauzas in dispute Manhu and Saharewa and that their possession has not at all been disturbed on account of their wrong entry in the Survey Record of Rights. They also assert that the tenure is resumable and was, as a matter of fact, resumed. Their case is that the villages in question, Manhu Saharewa and Majhigawan in Pdrgana Palamau, were held by their ancestors on the mother's side in khairat. The two Mauzas Manhu and Majhigawan were granted in mukarrari to two brothers Janki Singh and Pryag Singh shown in the above pedigree, by a deed, dated the 19th Chaitra 1234 Fasli (corresponding to 1st April 1827) at an annual jama of Rs. 71 and Rs. 21 respectively. Under the terms of that deed (a correct translation of which has now been made by the Superintendent of the Translation Department under our direction) the rent was to be paid in three instalments with a stipulation that in the event of default of payment of three kists the deed would become inoperative. The defendants did make default in payment of the three kists after the death of Janki Singh and Pryag Singh. The plaintiffs further assert that according to the custom prevalent in the District of Palamau the grant is liable to resumption after the direct male line of the last male-holder of village Manhu has become extinct. After the death of Janki Singh, his son Rampadarath Singh came into possession of that village, and after the death of Rampadarath Singh the ancestors of the plaintiffs wanted to enter upon and take sir possession of the village, but at the request of the widows of Rampadarath Singh, namely, Musammat Hari dasi Kuer and Musammat Radhika Kuer, the plaintiffs', ancestors allowed those ladies to remain in possession of the village during their lifetime as a sort of maintenance. During the survey operations Musammat Radhika Kuer in 1323 Fasli (corresponding to 1916) and defendants Nos. 1 to 3 Ramadhar Singh, Amardayal Singh and Nand Keshwar Singh contested the claim of the plaintiffs and the defendants were ultimately recorded by the Survey Officers in the khewat as being in possession and the tenure being not resumable. The plaintiffs also alleged that defendants Nos. 1 and 3 are distant gotias and are not heirs of Rampadarath and as such are not entitled to the property in question and that after the death of Musammat Radhika Kuer the mukarrari is liable to be resumed by them.
6. As regards Sahorswa the plaintiffs claim that this village is unconnected with and not falling under the mukarrari grant, dated the 1st April 1827 (Exhibit 1) and as such it has been in possession of the plaintiffs but in the Record of Rights this village has been recorded as also mukarrari istimrari of the defendants Nos. 1 to 3 as part and parcel of village Manhu.
7. Upon these allegations the plaintiffs claimed the following reliefs:
(i) It may be adjudicated and declared by the Court that on account of default made in the payment of three instalments and also on account of the failure of the male line of Babu Janki Singh, Mauza Manhu has been in the sir possession of the plaintiffs, that the plaintiffs are in sir possession of Mauza Sahorswa also that both the Mauzas Manhu and Sahorswa belong to them in their khairatdari interest, that the defendants in this suit neither have nor supposed to have acquired any interest in the mukarrari of the said mauzas and that the defendants are not entitled to get their names entered in the khewat as mukarridars in respect of Mauzas Manhu and Sahorswa.
(ii) If on account of any illegal action on the part of the Survey and Settlement Department, etc., the defendants be deemed to be in possession then in that case the Court may be pleased to put the plaintiffs in sir possession of Mauzas Manhu and Sahorswa, Tappa Nandiha, Pargana and District Palamau, boundaries, Survey Numbers and Thana Numbers whereof are given below, by removing the unlawful possession of the defendants.
(iii) All costs in Court with interest pendente lite and future interest may be awarded.
8. The defendants Nos. 1 to 3 filed one written statement and defendant No. 4 filed another. They resist the plaintiffs' claim on various grounds both in law and on facts. They plead limitation, res judicata and insufficiency of Court-fee as pleas in bar to the plaintiffs' claim.
9. As to their right under the deed of grant in question the defendants assert that two villages Manhu including Sahorswa and Mahjigawan were jointly granted to the two brothers, Janki Singh and Pryag Singh, in mukarrari istimrari descendible from generation to generation, that subsequent to the grant the two brothers arranged to hold the two villages separately, Janki having got Manhu including Sahorswa and Pryag having got Majhigawan, that under the deed in question the grant is not resumable on failure of heirs of the grantee, male or female that there was no kist mentioned in the deed and hence the plaintiffs have no right to resume the grant on failure to pay the instalments as alleged by the plaintiffs.
10. The defendants repudiate the plaintiffs' suggestion of there being any custom in the District of Palamau for the resumption of such mukarrari grants on failure, of heirs and deny the correctness of the allegation that the possession of the widows of Rampadarath Singh, namely Musammat Hardasi and Radhika, after the death of their husband, was permissive and assert that the said ladies got possession of the villages as heiresses of Rampadarath Singh and on payment of rent. They also deny that there was any default in payment of any kist as alleged in the plaint and aver that the rents of 1323 and 1324 were deposited by the defendants in Court to the credit of the plaintiffs who refused to accept the same when tendered. The defendants further traverse the allegation of the plaintiffs as to their having got sir possession of the villages in question and of their having established their bhandar there and say that they are in possession of the villages as heirs of Rampadarath Singh after the death of his widows in mukarrari istimrari under the grant referred to above. Those defendants deny as observed above, the relationship of Chain Singh with Rampadarath Singh and state that the said Chain Singh is a creature of the plaintiffs and his claim has been set up in this case by the plaintiffs to defeat the defendants' right. As regards Sahorswa the defendants say that it is a tola, and not a separate village, and has always been in possession of their predecessor-in-interest as part and parcel of Manhu under the grant in question.
11. We need not now refer in detail to the plea of defendant No. 4 as in the circumstances mentioned above he may be considered to have been deleted from the litigation.
12. Upon the pleadings of the parties the following issues were raised in the Court below:
(i). Have the plaintiffs, any cause of action for the suit?
(ii) Is the Court-fee paid insufficient?
(iii) Is the suit barred by limitation?
(iv) Is the suit barred by res judicata?
(v) Is the mukarrari of Mauza Manho resumable for non-payment of rent for 3 kists, if so, can the mokarrari be resumed without giving an opportunity to the defendants to pay up the arrears of rent?
(vi) Is the mukarrari of Mauza Manho resumable on failure of heirs male of the grantees. If so, can it be resumed so long as the heirs male of Pryag Singh are in existence?
(vii) Did the plaintiffs make any life grant of the disputed mokarrari to Musammat Radhika Kuer or she was in possession in her own right as legal heir of her deceased husband Padarath Singh?
(viii) Did Musammat Radhika pay up the mukarrari rent up to the year 1322 Fasli and have there been any deposits of rent for the years 1323 and 1324 Fasli?
(ix) Is there any custom in the Parganah of resumption, on failure of heirs male in direct line as alleged by the plaintiffs? If so does the custom apply to the grant in suit?
(x) Are the plaintiffs in sir possession so far as the, defendants are concerned of Manhu and Tola Sahorswa as alleged?
(xi) Is defendant No. 4, the daughter s son of Padarath Singh, deceased? If so, has his right to succession over the properties of Padarath Singh become extinguished in consequence of his becoming a sadhu and have the defendants Nos. 1 to 3 become entitled to these properties?
(xii) Is the suit bad for defect and misjoinder of parties?
(xiii) To what relief, if any, are the plaintiffs entitled?
13. Issues Nos. 1 to 4 do not now arise and have been set at rest by the decision of the Court below.
14. The findings of the Court below upon Issues Nos. 3 and 4, namely, limitation and res judicata have not been challenged in this Court, and in fact, it appears that the view of the Court below is correct.
15. Issues Nos. 5 and 8 decided against the plaintiffs-appellants are also not pressed in appeal.
16. Issue No. 11 was decided against defendant No. 4 he being held not to be the son of daughter of Rampadarath Singh. There was, as observed above, a cross-objection by defendant No. 4 against the finding on this issue, but there has been no appearance on behalf of his heirs in this Court, and the plaintiffs and other defendants accept the finding of the Court below, the latter having denied the relationship set up by defendant No. 4. This issue consequently does not now need further consideration in this appeal.
17. The first parts of Issues Nos. 6 and 9 have been decided in favour of the plaintiffs. The Court below has held that the mukarrari tenure in question is resumable on failure of heirs male of the grantees under the terms of the grant as well as under the custom of resumption on failure of heirs male in direct line of the grantees set up by the plaintiffs as being prevalent and in vogue in Pargana Palamau. The defendants are aggrieved by the decision of the Subordinate Judge upon, these points and have filed a cross-objection.
18. Issue No. 12 has also been decided in favour of the plaintiffs, the Court below having held that the absence of Amarnath from the record does not affect the maintainability of the suit. The defendants do not accept this view of the Court below and have, therefore, filed a cross-objection.
19. The second parts of Issues Nos. 6 and 9 and Issue No. 10 have been decided against the plaintiffs, the Court below having held that the mukarrari of Mauza Manhu cannot be resumed so long as the heirs male of Pryag Singh are in existence and that the plaintiffs have never been in sir possession of Manhu or of Tola Sahorswa.
20. The result of the decision of the Sub-ordinate Judge upon these issues against the plaintiffs have been that the plaintiffs' suit; has been dismissed in toto.
21. The main questions, therefore, for consideration in this appeal are those involved in the aforesaid Issues Nos. 6, 7, 9, 10 and 12. To put it clearly the points are (1) whether the mukarrari of Mauza Manhu is resumable firstly under the terms of, the grant (Exhibit 1), dated the 1st April 1827, and secondly upon the custom of resumption pleaded by the plaintiffs, (2) if the tenure is resumable upon the happening of certain events so as to entitled the plaintiffs to resume the mukarrari in question, (3) is Sahorswa apart or tola of Mauza Manhu, or is it a separate village unaffected by the grant in questions (4) is Amarnath, the great-grandson of Pryag Singh, a necessary party in the case and is the suit, therefore bad on account of his absence from, the record.
22. The last point may be disposed of at once. The plaintiffs' action is virtually levelled against the entry in the Survey Record of Rights and they seek a declaration that the entry is incorrect. They expressly state that the persons entered in Record of Rights set up a false claim with respect to the mauzas in question against the plaintiffs right. The Survey has recorded amongst others Amarnath as being in possession of the villages in question and as claiming istimrari mukarrari interest adverse to the plaintiffs The plaintiffs further claim in the alternative recovery of possession in case they be deemed to have been out of possession. Now, the persons recorded as in possession of the villages in question and as claiming title adverse to the plaintiffs are necessary parties to the plaintiffs' action for a declaration of their title and for recovery of possession in the alternative. The Court below has held that "the defendant No) 1 is the only person entitled to this Mukarrari but as the Survey Records have entered the names of defendants Nos. 2 and 3 also they are necessary parties to this suit." This reason stated by the learned Subordinate Judge applies with equal force to the case of Amarnath and therefore, the Subordinate Judge is wrong in his view, for which he has given no reason, that "the absence of Amarnath from the records of this suit does not affect its tenability." Therefore, the objection of the defendants must prevail and the finding of the Court below on Issue No. 12 is set aside.
23. The next question is as, to whether the tenure is resumable either under the terms of the grant, or under, the custom set up by the plaintiffs. The deed in question is said to be a patta granted by Nut Nath Jha the predecessor-in-interest of the plaintiffs, to Raj Kumar Sri Pryag Singh and Babu Janki Singh, the ancestors of the defendants-respondents. It runs as follows:
Swasti Sri Maharaj Pujit Sri Sri Minhaidar Mauza Kishunpur wogarah Paragana Palamau Zillah Ramgarh age Tappe Deogan maha Mauza Naudiha wo mahuari ke bari maha Mauza Manhu wo Mauza Majhigawan yeh dono gaon hamara khairati hai se ham Raj Kumar Babu Sri Pryag Singh wo Babu Sri Janki Singh ko mukarrari likh del mai am, mahua jalkar, bankar, tar, bagh, kath, koa, parjakur, chakur say animal jahat istamrari likh del take jama molguzarijat wo rupia sikha kaldar mukarrari biyanwe rupia wo Babu mazkur ke all aulad pusht dar pusht likhla muafiq malguzari del karat sal basal jagah blog karat Ham wo hamar ali auladi likhld muafig malgujari pusht dar pusht del kari sal basal
24. The English translation of the above is as follows:
25. Respected and worshipped by the Maharaj, (I am) the mainhaldar of Mauza Kishunpur, etc., Pargana Palamau, District Ramgarh. I hold in khairati (charity) Mauza Manhu and Mauza Majhigawan in the Barhi of (appertaining to?) Mauzas Naudiha and Mahuari in Tappa Deogan. I have granted it (in writing) (in) mukarrari to Rajkumar Babu Shri Pryag Singh and Babu Shri Janki Singh, including mango and mahua (trees), jalkar, bankar, palm trees, orchards, catechu, cocoons, houses of tenants, the four boundaries; (I have) granted (it) in writing as a perpetual (istimrari) grant by all means. The amount of rent in respect thereof is ninety two rupees in kalladar coin... fixed (amount) Rs. 92. The Babus, aforesaid, and their descendants (alaulad) generation: after generation, should pay the rent written (above) year after year, (and), enjoy the lands. I and my descendants (alaulad) generation after generation, shall realise the rent written (above), year after year. Details of the rent: For Mauza Manhu seventy one rupees for Mauza Majhigawan Rs. 21. In the event of default (in the payment of) rent for three kists the mukarrari shall be void." Dated Sari, the 19th Chait 1234 Fasli Sambat 1884."
26. In the translation the words "heirs and representatives" have been put down for the vernacular words "ali aulad" and the words "generation after generation" for the words "pusht dar pusht."
27. The grant of the two villages, Manhu and Majhigawan, has been made to the two, brothers, Pryag Singh and Janki Singh. The grant is to be enjoyed by the grantees and their heirs and representatives (al aulad) generation after generation (pusht dar pusht). The grantor and his heirs and representatives (al aulad) have to receive the rent generation after generation (pusht dar pusht).
28. According to Fellon's Dictionary the word "al" in Arabic signifies the issue born to the daughters and "aulad" the issue of the son. The two words "al aulad". put together would mean the offspring or children or descendants both in the male and in the female line "pusht dar pusht" means through successive generations; generation after generation; parampara.
29. The word 'istimrari' is derived from "istimrar" which means permanence, perpetuity, uninterrupted possession. In law it means a fixed rent not liable to alteration. "Istimrardar" is the holder of a lease in perpetuity. "Istimrari" is an adjective and means perpetual, continuative, never ceasing. "Istimrari patta" is a lease or form granted at a fixed rent and in perpetuity. In this view the Permanent Settlement of Lord Corn wallis is said to be istimrari and a piece of land is said to be settled istimrari when it is settled permanently.
30. Mukarrari, a fixed lease, quit rent, a fixed stipend. It connotes fixity of rent and also permanency.
31. The aforesaid words in the kabuliyat (al aulad) pusht dar pusht, mukarrari and istimrari indicate etymologically that the grant was perpetual, permanent in its duration and fixed in the rental descendible to heirs both in the male and female lines and was to be held generation after generation. Not the terms of the document but the entire context thereof shows that the grant conferred, upon the grantees in unambiguous and clear terms, a permanent, perpetual and heritable grant. It was a grant unlimited in the way of succession or in duration. Therefore, so far as the terms of the grant are concerned the plaintiffs cannot ask us to put any limitation upon its enjoyment by the Heirs of the grantees either in the male or female line or by their representatives. It was an absolute grant heritable and transferable. The plaintiff's right to resumption has not at all been reserved in the deed. Therefore, the contention of the plaintiff that the grant was resumable on failure of the male heirs in direct line of the grantees, must fail upon the construction of the document.
32. The plaintiffs wanted to fortify their position by making the grant resumable upon custom said to have been in vogue in the part of the country where the lands in question are situate, The learned Subordinate Judge has held that no reliable evidence of any custom has been given in this case. Now, the clear and unambiguous terms of the documents conferring an absolute and irresumable right on the grantees can be abandoned or controlled only by clear evidence of custom ancient, invariable and unambiguous and so having acquired the force of law. The learned Counsel on behalf of the appellants has not attempted to support, the custom set up by the plaintiffs by reference to any evidence on the record. Therefore, the view of the Court below that there is no evidence offered or produced by the plaintiffs to show that there was a custom prevalent by which the words "al aulad" were understood to mean lineal male descendants. The learned Subordinate Judge has based his decision on the fact that "al aulad" and "pusht dar pusht" in the present case must have restricted meanings application to male descendants only upon certain authorities relied upon by him. The first case referred to by him is Perkash Lal v. Rameshwar Nath Singh 31 C. 561. That case related to a khairat bishanprit grant made to a Brahman by the Rajah of Kunda in Hazaribagh and special custom was pleaded whereby the words "al aulad" related only to male descendants, and the evidence in proof of the custom was accepted. The contention of the Advocate-General was that "although the words al aulad, etymologically considered, include both male and female descendants, yet according to the custom prevailing in the Kunda Raj at the time of the grant such khairat grants were resumable on the failure of lineal male descendants, and admittedly no such descendants exist. The evidence on custom is overwhelming". This argument was accepted by the Court. Therefore, in order to apply the principle of that decision it must be established by evidence that by custom the words must not be understood in their etymological sense but in a restricted sense as meaning male descendants in the direct line only. Another distinguishing feature of that ruling is that the terms of the grant-quoted in the judgment show that the words of inheritance employed were only "al aulad", and not "pusht dar pusht". Here, these additional words go to confirm that the grant was meant to be descendible both in the male and the female lines. Therefore, upon the findings of the Court that ruling has no application to the present case.
33. Mr. Das then relied upon the case of Ram Narain Singh v. Chota Nagpur Banking Association 36 Ind. Cas. 321 : 13 C. 332 at p. 409 in order to show that the view taken in the case of Perkash Lal v. Rameshwar Nath Singh, 31 C. 561 was approved of by the Privy Council. This is so but the view was confirmed with respect to the meaning of 'al aulad' having been restricted by custom. The Privy Council decision refers to the case of a putra putradik grant by the Maharajah of Chota Nagpur and it was held upon evidence that the words "putra putradik jagir" as employed in the grants made by the Maharajah meant only an estate for life descendible to male heirs only, and resumable on the extinction of the male heir of the grantee in the direct line. This decision also, therefore, does not apply to the present case. The same remark applies to the decision in the case of Lal Gajendra Nath Sahi Deo v. Lal Mathura Lal Nath Sahi Deo, 35 Ind. Cas. 383 : 1 P.L.J. 109 : 20 C.W.N. 876 which refers to the estate of the same Maharajah in the Ranchi District.
34. The aforesaid cases referred to by Mr. Das do not at all relate to Pargana: Palamau and will not apply to a custom set up in the present case. Therefore, the first part of Issues Nos. 6 and 9 must be decided in favour of the defendants and the view taken by the Court below must be set aside.
35. The plaintiffs' case was that after the death of Rampadarath, son of Janki Singh, the mukarrari of Mauza Manhu came to an end and was resumable; but his widows, Hardasi and Radhika, were allowed to remain in possession with the leave and license of the plaintiffs and consequently they obtained life grants which terminated after the death of the survivor of them Musammat Radhika in 1916. This story of their permissive possession of the widows of Rampadarath seems to be a myth and has not been substantiated by reliable evidence on the record. It is impossible to conceive that the widows would have been allowed to remain in possession merely for the asking and without any deed having been executed in their favour. Receipts used to be granted to them: Vide Exhibits A-8, A-9, A-24 to A-46, a large number of receipts in A series. These receipts described the ladies as heirs and successors of Babu Rampadarath Singh, the deceased mukarraridar, for instance vide. Exhibit A-8, dated the 6th January 1881, and Exhibit A-9, dated the 16th January 1881. The Subordinate Judge rejects the story and we have no hesitation in accepting his finding. But the finding leads to an important inference and that is that the two females succeeded to the mukarrari as heiresses of their husband which conclusively established that the grant from its inception was heritable in the female line. The ladies remained in possession for 30 years. This instance of succession of females to the mukarrari successfully repudiates the suggestion that al aulad and pusht dar pusht in the document in question should have a restricted meaning.
36. The learned Subordinate Judge says that assuming that the grants were resumable on failure of heirs male of the grantees either under the deed or under the custom set up by the plaintiffs, there has, as a matter of fact, been no failure of theirs male so long as the male heirs of Pryag Singh, the joint grantee with Janki Singh, is alive. The learned Subordinate Judge hold's that the grant created a joint tenure in favour of the two brothers Prayag Singh and Janki Singh, and the subsequent division of the mauzas between the two brothers, namely Janki Singh, getting village Manhu and Pryag Singh getting village Majhigawn, does not affect the original terms of the grant and dues not create a separate grant of Mauza Mahhu to Janki Singh and Majhigawan to Pryag Singh, so that on the failure of male heirs of Janki Singh, Manhu should revert to, the grantor. Mr. Das impugns this view of the Subordinate Judge and contends that there was no joint tenure created by the deed and Janki Singh and Pryag Singh were not joint tenants but were merely tenants-in-common. A plain reading of the deed (Exhibit 1), dated the 1st April 1827, does not support the contention of Mr. Das. He says that Manhu was granted to Janki Singh, and Majhigawan to Pryag Singh. The words in the deed are "Mauza Manhu and Mauza Majhigawan," the two mauzas are granted to "Rajkumar Prayag Singh, and Babu Sri Janki Singh", The two mauzas were jointly granted to the two brothers jointly. The rent payable to the landlord is mentioned in the aggregate for the two villages, namely, Rs. 92, in the document. How this rent has been arrived at is stated at the foot of the document as Rs. 71 for Mauza Manhu and Rs. 21 for Mama Majhigawan. Mr. Das contends that the specification of the two mauzas with respect to the rent separately at the foot of the document shows that the two village's were separately granted. I confess I have not been able to follow this argument. The question is not as to the apportionment of the rent over two villages, but the liability of the grantees for payment of the rent. What is there in the document to show that one of the brothers is liable to pay anything less than Rs. 92, or the separate rent of Rs. 71 for Mauza Manhu and Rs. 21 for Mauza Majhigawan? Both of them, according to the terms of the document are liable for the rent whether it be a consolidated rent for the two villages taken together, or separate rent for each of the villages. No inference for separate grants can be made from the specification of rent in the document with respect to each mauza separately. Had there been any separate grant, then Manhu having been mentioned first would have gone to Pryag Singh who is mentioned first in order of the grantees and Majhigawan having been mentioned second would have gone to Janki Singh who is mentioned second in order of the grantees, but this, not so. Therefore, the original grant cannot possibly be hold, upon the construction of the deed, to be a separate grant of Manhu to Janki Singh and Majhigawan to Pryag Singh. Mr. Das then says that had the grant? been joint, then after the death of Janki Singh, the two brothers would have been joint tenants and after death of Janki Singh, the survivor of them Pryag Singh would have succeeded to the grant, and not the son of Janki Singh with respect to Mauza Minim. This was an arrangement between Pryag Singh and Janki Singh and there is evidence that subsequent to the grant they divided the properties so that their respective heirs might succeed to the specific properties. It is conceded that the grantor is not bound by such an arrangement. Therefore the grantor cannot take advantage of the separate arrangement. It is not possible to treat the grant as a lapsed one so long as any male member in the direct line of any of the grantees is alive.
37. Mr. Das says that the separate holding of the properties subsequent to the grant by Janki and Pryag shows that there was a novation. Now, novation of a contract implies a fresh contract, directly or by implication in place of the original contract, so the parties to the original grant must also be parties to the novation of the new contract. In the present case it has not been shown that the landlord was ever a party to the arrangement so as effectively to create a new contract, in place of the old one set forth in the solemn document} (Exhibit 1). The principle of novation, therefore, does not apply to the present case.
38. Mr. Das has referred us to Williams on Real Property 23rd Edition, pages 144 to 147, in order to show the distinction between "joint tenancy" and "tenancy-in-common" and their incidents. There is no dispute as to the meaning and incidents of the two kinds of tenancies, It would, however, appear by reference to page 147 that the incidents of a joint tenancy may be changed and a member of the joint tenancy may sever his connection fey effecting partition, of his interest, and, after this is done the rule, of survivorship of succession will not apply but that the heirs of the separated tenant would succeed to his interest in the tenancy.
39. Mr. S.M. Mullck has referred us to the case of Ram Narain Singh v. Chota Nagpur Banking Association 36 Ind. Cas. 321 : 13 C. 332 at p. 409. While discussing the objection as to limitation, upon the ground that the cause of action with respect to a moiety of the tenure accrued, after the death of one of the mukarrariders, Mr. Justice Mookerjee observed;
The objections as to limitation and recognition are equally fallacious. They are based on the assumption that upon the, death, of one of the two original grantees, the lessor became entitled to reenter as to one half of the property demised. This argument, overlooks the elementary proposition that the lease would not terminate till the death of the survivor of the two lessees. There is a fundamental distinction between the question of the duration, of the lease as a whole and the question of the devaluation of the interest thereunder on the death of the first leasee. We are not now concerned with the question, whether upon the death of the first lessee, his heirs or his co-lessee would be entitled to occupy the demised premises. It is sufficient for our present purpose that the landlord was not entitled to re-enter till both the lessees were dead. In this view, no question of limitation or recognition, arises.
40. The Learned Subordinate, Judge has very ably clearly discussed, this point and we entirely agree with, has view that even if the grant was limited to the male heirs in the direct line of the grantees the right of re-entry or resumption in favour of the landlord not in this case accrued so long as the male descendant of one of the grantees Pryag Singh is alive.
41. The result is that Issues No. 6, 7 and 9 are decided in all their parts in favour of the defendants and against the plaintiffs. We also agree with the Subordinate Judge that the plaintiffs failed to prove that they were ever in sir possession of the lands in dispute, and in deciding Issue No. 10 against the plaintiffs. The investigation during the survey operations clearly shows that the plaintiffs were not found in possession of the villages in question. The widows of Pryag Singh, were admittedly in possession up to 1916 until the death of Musammat Radhika Kuari. The orders of the Survey Department upholding the possession of the defendants are dated the 6th March 1917 and 17th March 1917 (Exhibits 5 and 6 already referred to). The dispute must have commenced much earlier, and it is impossible to conceive that the defendants soon after the death of Musammat Radhika Kuari would have allowed the plaintiffs to take possession of the properties in dispute when they were claiming to hold the properties as permanent lessees under the mukarrari istimrari deed.
42. Now to prove that the tenure in question was a limited grant descendible only to the male heirs in the direct line of the grantees and to prove the right of resumption as well as the possession and dispossession, the onus is heavily upon the plaintiffs, not only because they are the plaintiffs and want reliefs in the present case but the statutory provision raises a presumption of the correctness of the survey entries in favour of the defendants. The defendants have given evidence in the case and the presumption of the Survey Record of Rights has not been rebutted by the plaintiffs.
43. The same remark applies to the claim of the plaintiffs with respect to Tola Sahorswa. Certain maps have been produced in this Court. Exhibits 9A and 9B are separate maps of the two villages filed by the plaintiffs. The defendants have filed a map (Exhibit Q) showing the two villages to be one. The Assistant Settlement Officer in his judgment (Exhibit 5) says:
44. The mukarrari having been granted in 1827 Sahorswa evidently then was a Tola of Manhu and since the Revenue Survey of 1864 has been treated as a separate village and this clearly accounts for the omission of Sahorswa from the mukarrari deed besides this the actual rent-receipts granted to the Musammat by the Ojhas, Hiranand Gunanand and others, show that they too have all along treated Sahorswa as a Tola of Mahu and have mentioned it to be so in the numerous rent-receipts that have been filed before me. No serious attempt has been made by the Ojhas to throw doubt on the genuineness of these receipts and they all appear to be genuine. Such being the case, I am of opinion that this claim too that Sahorswa was not included in the grant fails miserably.
45. Here also the onus is upon the plaintiffs to rebut the presumption of the finding of the Survey Officer and the entry made in the Record of Rights in accordance with that finding. The learned Subordinate Judge has come to the same conclusion as the Assistant Settlement Officer.
46. We have carefully considered the evidence in the case and the arguments of Mr. Das, and we do not think Mr. Das has been able to show that the view taken by the Survey Officers and the learned Subordinate Judge is in any way wrong.
47. I would in this case commend the judgments of the Survey Officers (Exhibits 5 and 6) who have gone in detail into the matter and have clearly met all the points raised by the plaintiffs in order to found their claim and those urged by Mr. Das in support of his contention.
48. I have already decided Issue No. 9. There was no dispute between defendant No. 1 and defendants Nos. 2 and 3 as regards their own right in the tenure in question, and the learned Subordinate Judge should not have raised this question and decided it. The finding of the Subordinate Judge on Issue No. 9 that "the defendants Nos. 2 and 3 have no right in this village and that it is the defendant No. 1 alone who is entitled to the entire village after Radhika's death" must be set aside. We are not at all concerned with the claims of the defendants inter se. We are concerned only with the claim of the plaintiffs, and it is already held that they have failed to substantiate their claim, and, therefore, the finding of the Subordinate Judge on issue No. 9 must be set aside.
49. The result is that the plaintiffs have failed to prove their case. The appeal must fail, and the cross-objection must succeed. The decree passed by the Subordinate Judge is, therefore, confirmed. The respondents will be allowed their costs in the appeal. There will be no separate costs with respect to the cross-objection.
Macpherson, J.
50. I agree that the appeal must be dismissed with costs.
51. The averments and issues upon which the parties went to trial have been fully set out in the judgment just delivered by learned brother, but I may state succinctly the, main conclusions of the Trial Court in so far as they are in contest in appeal or in the cross appeals. It is to be observed that the plaintiffs prayer for ejectment on the ground that the mukarrari has become void because three kists or more of the rent of the tenancy were in arrears has been definitely given up in appeal by Counsel for the appellants. The learned Subordinate Judge has held:
(i) that the mukarari al-aulad pusht dar pusht of villages Manhu and Majhigawan created and made istimrari by the patta, Exhibit 1, in favour of Rajkumar Babus Pryag Singh and Janki Singh is not non-resumable as is shown in the Record of Rights, but is, in accordance with what he finds to be the custom of pargana Palamau, resumable on the failure of the male line of descent of the original grantees;
(ii) that the mukarrari is not resumable in part on the failure of heirs male of one only of the grantees so long as there are heirs of the other grantee; and in particular that Manhu is not resumable on failure of the line of Babu Janki Singh so long as heirs male of the line of Babu Pryag Singh exist, and that in fact such heirs male do exist;
(iii) that Musammat Radhika Kuer, widow of Babu Rampadarath Singh, son of the grantee, Babu Janki Singh, was in possession as heir of her husband, and not merely, as plaintiffs aver, with their permission after they became entitled to resume on the death of her husband;
(iv) that plaintiffs were not and never had been in sir possession of Manhu or of Sahoreswa and that Sahorswa is a Tola of village Manhu;
(v) that defendant No. 4 was not the son of the daughter of Rampadarath Singh; and (VI) that the suit was not bad for defect of parties by reason of the fact that Amarnath Singh great-grandson of Babu Pryag Singh is not a party.
52. On behalf of the appellants the second, third and fourth of these findings has been assailed before us. Defendants Nos. 1,2 and 3 might under Order XLI, Rule 22(1), Civil Procedure Code, have supported the decree in their favour on the grounds decided against them in the Court below; but they have also filed a cross objection to the decree contesting the first and last of the above findings. A cross-objection was also filed on behalf of Babu Chain Singh, defendant No. 4, against the fifth finding but the representative in interest substituted in his place, after his death in the appeal has not entered appearance and the appellants have not attacked the fifth of the above findings.
53. In support of the appeal Mr. C.C. Das contends first, that the second finding of the Trial Court cannot, be maintained inasmuch as the patta (Exhibit 1) granted by the khairatdar in 1827 created not a joint tenancy but a tenancy-in-common. This contention has manifestly no force. These two villages together constituted the khairat tenancy of the grantor. The document cannot be interpreted otherwise than as conveying the two villages Manhu and Majhigawan jointly in a single tenancy to two persons jointly as the tenant and on a consolidated rental for the whole tenancy. The mere fact that the mukarrari patta contains a specification of the rent of each village does not detract from this view of the document as a whole the specification only shows how the consolidated rental stipulated for was arrived at. It is impossible to find in the document itself anything to support the contention of the appellants that Manhu, which is mentioned first, was the tenancy of Babu Janki Singh who is mentioned second and Majhignwan which is mentioned second, was the tenancy of Babu Pryag Singh who is mentioned first. On the contrary, it is explicitly provided that "the said Babus and their al-aulad shall pusht dar pusht pay the mukarrari rent of rent of Rs. 92 sikka", so that both grantees and their descendants are made responsible for the whole tenancy. To my mind Exhibit 1 is altogether unambiguous and this contention of Mr. C.C. Das fails completely.
54. Mr. Das then urges that the conduct of the parties, and in particular the payment of rent from the outset by Babu Janki Singh for Manhu and by Babu Pryag Singh for Majhigawan shows that Manhu was a separate tenancy of the former. But as the grant is unambiguous evidence is not admissible of conduct of the parties leading to another inference.
55. The third plea advanced by learned Counsel is akin to the second. It is that the grantor having allowed the two grantees from the outset to pay rents separately, that is, one grantee to pay the rent of one village and the other grantee to pay the rent of the other village, there was a novation. Now all the reliable evidence available in support of this view is merely (1) that front the outset Babu Janki Singh paid the quota of the consolidated rent of Rs. 92 which represents Manhu and Babu Pryag Singh the quota which represents Majhigawan, and (2) that much later the descendants of Babu Janki Singh paid the quota in respect of Manhu to the co-sharer descendants of the original grantor separately in proportion to the shares of these co-sharers in the khairat grant and that the position was apparently the same in respect of Majhigawan. In the absence of other circumstances these facts are not sufficient to establish a novation. The fact that the grantees for convenience of enjoyment divided the area demised has no significance, and the fact that the grantor then received the rent of each of the two divisions (even though they were the old natural divisions) from the grantee in enjoyment and even sued him separately, is not sufficient to show that the parties desired to depart from the original contract. On the other hand it is abundantly clear from the litigation of the early years of the present century that though the khairatdars sued separately for rent in accordance with their shares, and sued the successor-in-interest of Babu Janki Singh in respect of Manhu and the descendants of Babu Pryag Singh in respect of Majhigawan, yet when they sued for ejectment on the ground that the lease had become void, they sued as 16-annas khairatdars and impleaded as defendants the descendants or successors-in-interest of both the original grantees and claimed recovery of possession of the mukarrari tenancy consisting of both Manhu and Majhigawan as originally created. This is clear from the plaint, Exhibit L. in the ejectment suit No. 121 of 1901-02 the judgment in which is Exhibit R, (Exhibit 3 is the judgment in two rent suits Nos. 120 and 121 of 1900). Moreover it was held in that suit that the division by the grantees of their mukarrari istimrdri grant of Manhu and Majhigawan which was a joint grant, into two portions was not binding on the grantor even though the grantor realised the rents of the two portions separately, and that the latter was not prevented from evicting from the whole tenancy either by reason of the sub-division or by reason of the separate realisation of rent. Again in Suit No. 1 of 1904 which was brought by the whole body of representatives of the grantor of Exhibit 1 for cancellation of Exhibit 1 and possession of both Manhu and Majhigawan, all the descendants in the male line of Babu Pryag Singh with Musammat Radhika Kuer as representing the line of Babu Janki Singh, were impleaded as defendants. In the face of there documents it is impossible to uphold the suggestion of novation. If there had been novation such as is suggested, a separate suit would have been brought in respect of each of the two sub divisions of the original grant.
56. Mr. Das has mentioned the fact that English Law struggles against a joint tenancy and prefers a tenancy-in-common. He is, however, vague as to the time when the latter tenancy came into existence in this case, and in any case no analogy ought, if it can possibly be avoided, to be drawn between the law of England highly developed in accordance with his own local conditions, and the grant made a century ago in a backward area in even for India the backward pargana of Palamau. More possible is the analogy with istimrari mukarrari tenancies in the Ramgarh Estate in the neighbouring District of Hazaribagh. Most of these grants whether life grants or al aulad pusht dar pusht are made out in the names of two persons and it is well-known [see also Ram Narain Singh v. Chota Nagpur Banking Association 36 Ind. Cas. 321 : 13 C. 332 at p. 409] that even in the life grant, class the tenancy does not become resumable, even in part, until both grantees are dead. There is certainly no reason why a different rule should apply where, as here, the grant is to two grantees and their offspring generation after generation.
57. It is admitted that offspring and even heirs male of Babu Pryag Singh, one of the grantees, exist at present.
58. Accordingly the second finding of the learned Subordinate Judge is correct. The circumstances in which resumption may take place, if it can at all take place, have not arisen.
59. The third finding also is correct beyond any possibility of doubt. The claim that on the death of Rampadarath Singh, the khairatdars resumed Manhu and arranged with Musammat Radhika Kuer that she should remain in possession during her lifetime is altogether contrary to all the probabilities and is unsupported by a tittle of credible evidence, and indeed many of the rent-receipts granted by the different sets of co-sharer khairatdars give the life to the present claim, since they refer to her and the other bahurias as heiresses or heiresses and successors of Babu Rampadarath Singh deceased. It has not even been suggested before us that the finding that the appellants were never in sir possession of Manhu proper at any time, or the grounds on which it is based are not correct.
60. Thus appellants are not entitled to possession of Manhu either by way of recovery of last possession which they never had or by right of resumption, and the appeal in respect thereto fails completely.
61. A word may now be said as to the remainder of the fourth finding which relates to Sahorswa. Appellants assert that it is a separate village from Manhu, is not a part of the grant of 1827 and is in their sir possession. The Record of Rights favours the contention of the defendants Nos. 1 to 3 that Sahorswa is covered by the grant. The defendants further contended that it was always so held. The Trial Court held that it is a Tola of Manhu in possession of defendants Nos. 1 to 3 as such and that it has never been held sir by appellants. This finding is unquestionably correct. The only evidence placed before us in support of the case of appellants that Sahorswa was not a part of the grant is the two maps Exhibit 9(a) and Exhibit 9(b). These entirely fail to rebut the presumption arising from the Record of Rights. Though erroneously called thakbast maps they appears to be copies of something better--a Revenue Survey Map. Each is in fact a copy of the part of the original map of which the third map which is filed by defendants, is a full copy. Clearly the only inference which can be drawn is that Sahorswa was a new village formed at the Revenue Survey out of the area till then considered to be the village of Manhu: otherwise the two would not be depicted on the same map. Then the plaintiffs could have produced the details papers of the Revenue Survey or even of the thak demarcation, and in their absence no inference in their favour can be drawn from the maps on record. But apart from that the evidence on the other side is overwhelming that Sahorswa is a part of Manhu and that plaintiffs have never been in sir possession. The raiyats of Sahorswa have testified in favour of defendants Nos. 1 to 3 whereas neither the evidence of tenants nor counterfoil receipts are forth-coming on behalf of the appellants. Furthermore the rent-receipts granted to Musammat Radhika Kuar by the various co-sharer khairatdars show that the tenancy was Manhu-Sahorswa, Manhu and Saharewa or Manhu-asli-mai-dakhili. The Trial Judge could not possibly have arrive at any conclusion except that Sahorswa is a Tola of Manhu and is held as part of Manhu under Exhibit 1, that appellants were never in possession of Tola Sahorswa and are not entitled to possession thereof on the ground that it is out with Manhu. It has already been held that they cannot resume Manhu.
62. This really disposes of the appeal. The fact is, as pointed out more than once by the Courts: "that the plaintiffs are dissatisfied with the arrangements made by their ancestors and have resolved in getting rid of them and of the defendants at all costs." But a few words may be said as to the questions raised in the cross-appeal, if such it can be termed of defendants Nos. 1 to 3.
63. I agree with my learned brother that Amarnath Singh, a descendant of Babu Pryag Singh who has a share in Manhu, was both a proper and a necessary party to the suit.
64. As to the first finding of the learned Subordinate Judge, which is in favour of the appellants, all that Mr. S.M. Mullick on behalf of the respondents asked during argument was that if the suit failed on other grounds, this issue should remain open. The learned Subordinate Judge also considered that the question had lost much of its importance in view of the second finding. Again in the "reliefs" set out in paragraph 15 of the plaint no definite prayer is made for a declaration that the entry "Not resumable" in the Record of Rights is incorrect or of the circumstances in which the tenancy is resumable. It was admitted that no part of the tenancy was resumable until at least the heirs male of one of the grantees became extinct and it has now been decided that no part is resumable so long at least as an heir male of either of the grantees survives. What remains is the question whether the appellants have by evidence rebutted the entry in the Record of Rights so far as to show that the khairatdars may resume the tenancy.
(1) When there are heirs other than heirs male of one of the original grantees, or failing that (2) when there are no heirs, either male or female.
65. I am loath to enter upon this difficult question where it is not absolutely necessary to do so. But I may mention that at first sight the considerations advanced by the learned Court below for his finding in favour of the appellants appear insufficient to rebut the entry in the Record of Rights. The Kunda case, is admittedly not in point as appellants have not given evidence of a custom by which al aulad in 1827 was restricted in pargana Palamau to lineal male descendants. It may well be the case that the general custom in pargana Palamu is that al aulad pusht dar pusht grants are resumable on failure of heirs male, but I cannot hold that the judgment, Exhibit VII, is sufficient to prove the custom that the tenure in the present instance, in regard to which the entry in the Record of Rights, is not resumable expires on failure of heirs male. The previous rulings refer to cases in which there was no adverse entry confronting the plaintiffs. The grantor too in this instance was a Tirhutia Brahman newly arrived from Darbhanga, and the grant is not definitely a jagir or an ijara (even of the ijaras in Palamau which often are doami in tenure, though the rent is subject to enhancement). In my experience, also, ordinarily it is not possible to predicate a custom of the Division of Chota Nagpur as a whole. It generally goes by estates, e.g., Chota Nagpur (equivalent broadly to Ranchi District, and called 'Nagpur' in the vernacular) or Ramgarh or Pachete, or by great Pargana, often corresponding to estates, such as Porahat, Dhalbhum, Barahabhum, Tori or Plamau; and though analogy of neighbouring parganas or estates may help, it does not always do so and is rarely conclusive. I feel insecure, therefore, in disposing of the general question of resumability in this appeal, and I would accordingly leave the question open between the parties as requested by cross-appellants and not objected to by plaintiffs, except, of course, to this extent that the mukarrari istimrari grant is not resumable so long as there survives any heir male of either of the original grantees.
66. I would associate myself with the warning addressed by my learned brother at the instance of their Vakil, to defendants Nos. 1 to 3 that incidental remarks or even decisions in the judgments in this litigation must not be taken as determining the rights of defendants Nos. 1 to 3 and Amarnath Sing inter se. These, may well be governed by considerations out with the matters appearing in or relevant to this litigation, and in particular it does not appear to follow from the fact that because the tenancy cannot be resumed while defendant No. 1 or Amarnath survive, that the other defendants or even outsiders may not have interest therein. If controversy arises, settlement by private arbitration would appear to be indicated.