Patna High Court
Mathura Sahu And Ors. vs Babu Chandradip Singh And Ors. on 12 August, 1920
Equivalent citations: 59IND. CAS.87
JUDGMENT Adami, J.
1. The facts of the case giving rise' to these second appeals are shortly as follows:
2. The plaintiffs and defendants, who were co-sharer maliks at the time, held a mortgage of the four annas share of another co-sharer malik of the villages of Semraon and Akhari, and while the mortgage still continued purchased the occupancy holdings of certain tenants comprised in the mortgaged share. In course of time, in 1305, the mortgagor instituted a suit for redemption which resulted in the High Court deciding that the mortgagor was entitled to treat the holdings purchased by the mortgagees as accessions to the mortgaged property, and to obtain possession of them on paying the purchase money. It seems that the purchase-money was not paid and the plaintiffs continued in possession of those holdings. In the Survey and Settlement records the plaintiffs were shown as holding the lands under Section 22(2) of the Bengal Tenancy Act and the khatian described the lands as their bakasht. After the publication of the Record of Rights there was a partition in 1916, between the co-sharers, and the (SIC) acres of land purchased by the plaintiffs fell into the patti allotted to the defendants, who tried to take possession.
3. Proceedings under Section 144, Criminal Procedure Code followed, resulting in an or lac against the plaintiffs, who then instituted the four suits out of which these second appeals arise. The plaintiffs claimed that they were entitled to retain possession of the lands as occupancy tenants paying rent to the defendants, and sought for confirmation or recovery of possession. The defend-ants contested the suits on the ground that the lands were bakasht and had fallen into their patti under the partition.
4. It appears that in the Settlement Record and in the batwara the land in dispute has been recorded as 'bakasht' and in the khewat (Exhibit 5) the plaintiffs are recorded as intermediate tenure holders by virtue of purchase under Section 22(2) of the Bengal Tenancy Act.
5. The Munsif dismissed the suit, finding that no custom of transferability without the consent of the landlord existed in the villages, and also that the purchases came under Section 22(1) of the Bengal Tenancy Act. He relied on the judgment of the High Court in the previous redemption suit.
6. On appeal, the learned District Judge held that the occupancy holdings were transferable by custom without the landlord's consent, and that the plaintiffs purchased the holdings as co-sharer maliks and not as mortgagees and, therefore, the purchases were controlled by Sub-section (2) and not by Sub-section (1) of Section 22 of the Bengal Tenancy Act. It was decided that under the former sub-section the plaintiffs were entitled to continue in possession of the disputed lands as tenants paying rent to the other co-sharers. He held that the suits were not barred by the provisions of the Estates Partition Act, 1897. The plaintiffs' suits were, therefore, decreed.
7. Before me it is contended that, in the first place, the suits were barred under the provisions of Section 119 of the Estates Partition Act; secondly, that the purchased holdings, being accessions to the mortgaged property as decided by the High Court, after their purchase would be accessions to the proprietary right and would not be accessions to any tenancy right: thirdly, that under Section 22(2) of the Bengal Tenancy Act, after purchase by the co-sharer the holdings were divested of any occupancy right and so the plaintiffs could not claim right of occupancy, and lastly, that as the partition of the properties had been allowed by the plaintiffs, who were parties, to proceed on the basis that the lands in dispute were bakasht lands, the plaintiffs' could not now come forward and claim that the lands were their raiyati holdings.
8. With regard to the first contention it is argued that the plaintiffs' claim is practically to upset the partition order, since in the partition the lands in dispute were reckoned as bakasht lands, and the effect of declaring them to be the raiyati lands of the plaintiffs would be to disturb the partition. The case of Gurbuksh Prasad v. Kali Prasad Narain Singh 32 Ind. Cas. 167 : (SIC)9 C.W.N. 1322 is relied on in contending that, under action 119 of the Estates Partition Act, 1897, the present suit is not maintainable.
9. The fourth contention of the learned Pleader for to the appellants may be considered here. The Settlement entry showed the lands to be bakasht and the partition proceeding followed this entry and yet the plaintiffs took no steps to protest and have the entry corrected. I cannot see that the plaintiffs can now come forward to claim a raiyati interest, and thus gain an advantage by upsetting the basis on which partition has been made, It would seem that the object for which Section 119 of the Estates Partition Act was enacted would be frustrated if the suit were allowed to succeed.
10. I am of opinion that, in any case, the appeal must succeed in the second and third contentions. The District Judge has found, and I think (SIC) that after the purchases the lands acquired would be governed by Section 22(2) of the Bengal Tenancy Act, but he has not taken into account the effect of the partition. Under that section, the purchasing co sharer is allowed to hold the purchased holding as tenant, but the holding is divested of its occupancy right, it is no longer an occupancy holding and a right of occupancy cannot accrue during the tenancy. The sub section does not tell us exactly what the nature of the tenancy will be except that it will not be an occupancy tenancy: it would seem to be a tenure according to the explanation to the sub-section. The condition laid down in the sub-section allowing the co sharer to be a tenant of the acquired holding is that he shall pay rent to the other co sharers proportionate to their shares. As soon as the estate is partitioned the co sharers cease to exist, and it is then impossible to carry out the condition, It may be argued that after partition the whole of the rent would fall to the share of the co sharer to whom the patti is allotted, but then no account for this was made at the partition and the other co sharers could have good reason to complain as no provision was made to compensate them for the share of the rent which they would lose on partition.
11. Immediately before the partition, there was no occupancy right in the land, for the purchase had divested it of its character as an occupancy holding, and the right could not be revived by the partition. After the purchase of the holdings they were virtually bakasat lands of the co-sharers which the purchasing co-sharer was allowed to keen apart for himself on condition of paying rent to his co sharers, so that they shared in the profits.
12. On partition, the lands remained bakasht and were liable to be allotted as such to the co-sharer in whose patti they were situated.
13. I am of opinion that the plaintiffs were not entitled to retain possession of the lands in suit as occupancy tenants. No claim has been made as to compensation for the purchase money.
14. On the grounds given above, I allow the appeals and, setting aside the decree of the lower Appellate Court, restore that of the Munsif.
15. The appellants will get costs in all Courts.