Patna High Court
Bimal Kumar Sinha vs State Of Bihar And Ors. on 16 April, 1968
Equivalent citations: 1969(17)BLJR257
JUDGMENT M.P. Verma, J.
1. Plaintiff is the appellant because his suit (Title Suit No. 57 of 1960) has been dismissed by the Third Additional Subordinate Judge, Purnea in respect of the lands in lot No. 2 of the plaint.
2. The case of the plaintiff, in short, was that the entire disputed lands measuring 70.89 acres were held as bakast lands of one Shrimati Saraswati Choudharain. Plaintiff took settlement of the entire lands from her in the year 1352 (Mulki year 1945) at an annual rental of Rs. 95/- besides cess and came in khas possession of these lands. After about six years he settled 53.49 acres of lands with Nafar Ali, ancestor of defendants 1 to 4, Bacha Munu, ancestor of defendant No. 5 and Ghogharu, defendant No. 6 on manhunda rent of 32 rnaunds of paddy per year. After the settlement the settlees came in possession of the lands as shikmidars (under raiyats). The remaining lands, i.e., 17.60 acres remained in his khas possession and he continued to be in possession thereof. In the revisional survey the khatian of which was finally published on 26-3-1958, the shikmidars as alleged above were recorded as occupancy raiyats, these lands having been mentioned in lot No. 1 of the plaint. The remaining lands which are contained in lot No. 2 were recorded as gairmazarua lands of the State of Bihar. Plaintiff, therefore, brought the suit for a declaration that these survey entries had been wrongly made and he should be declared to be the occupancy raiyat of the entire lands, i.e. both lot Nos. 1 and 2.
3. The suit was contested by two sets of defendants. Defendants 1 to 10 and 12 contended that they were the occupancy raiyats of the entire suit lands. Plaintiff never took settlement of the disputed lands as alleged by him and the story of settlement is all false and imaginary. Plaintiff never came in possession of the suit lands. He never settled any land with the ancestors of these defendants as shikmidars at a manhunda rent of 32 maunds of paddy. They further contended that khata Nos. 73 to 79 which were bakast lands situate in village Gilabari appertaining to khewat Nos. 31 and 32 together with the khewat interest were acquired by Sarswati Choudharain, the grand-mother of plaintiff. Sarswati Choudharain died leaving behind three sons, who inherited her properties. In the year 1349 Mulki year they settled the entire disputed lands with the ancestors of defendants and since then they were corning in possession of these lands. The State of Bihar, defendant No. 11 had absolutely no concern with any portion of the disputed lands. According to them, the lands of lot No. 2 had been wrongly recorded in the survey khatian as gairmazarua lands of the State.
4. Another written statement was filed on behalf of the State of Bihar as defendant No. 11. According to them, the plaintiff never took settlement of the disputed lands from Sarswati Choudharain nor did he come in possession of the same. The lands comprised within Lot No. 2 were lying parti since a very long time and were not being cultivated by anybody. So when the zamindari vested in the State on 26-1-1955, the lands of lot No. 2 came in possession of the State of Bihar and they were correctly recorded as gairmazarua lands of the State in the survey papers. Plaintiff had no title to those lands and his claim was mala fide.
5. The learned Additional Subordinate Judge framed as many as eight issues and his main findings were (1) that the lands comprised within lot No. 1 were the occupancy lands of the plaintiff and defendants 1 to 10 and 12 were shikmidars thereof. So he decreed the suit of the plaintiff on contest against these defendants with costs in respect of lot No. 1. (2) The lands comprised within lot No. 2 were not the occupancy lands of plaintiff. They were lying parti and so they were rightly recorded as gairmazarua Bihar Sarkar in the revisional record of rights. Plaintiff has come up in appeal against this decision of the learned Additional Subordinate Judge in respect of the lands of lot No. 2. Defendants 1 to 11 and 12 have not preferred any appeal or cross-appeal.
6. The learned Counsel for the appellant Mr. P.S. Chatterji has advanced an argument that the lands of lot No. 2 were in khas possession of the plaintiff at the time when the khatian was prepared. Plaintiff was an occupancy raiyat in respect of those lands and so the lands could not vest in the State under the Bihar Land Reforms Act. According to him, the entire suit lands had been taken in settlement from Sarswati Choudharain and so a portion of the settled lands could not be treated in a different manner by the learned Subordinate Judge. The survey entry was, therefore, apparently wrong and plaintiff's claim should have been allowed in toto. On behalf of the State Mr. Sarwar Ali, learned State counsel contended that plaintiff was not an occupancy raiyat in respect of the lands of lot No. 2. Rather, he was holding the lands as an heir of the intermediary landlord, namely, Khewatdar. When the zamindari vested in the State, these gairma-zarua lands which were parti kadim lands vested in the State in a legal way and the survey entry was correctly made.
7. There is no dispute between the parties that the disputed lands were formerly in possession of Mithan Danayal and others, the khewat-holders. In execution of a rent decree Sarswati Choudharain auction purchased that interest at a court sale. The relevant sale certificate is Ext. 7 which shows that this auction purchase was made on 15th February, 1935. The description given in the sale certificate reads as follows :
Sixteen annas of the rent claimed land, constituting Istamarari Lekin Mukarrari Nahi interest...together with fruit bearing and non-fruit bearing trees and bamboos clump, mango and jack-fruit trees together with all the rights in 70 acres and 79 decimals of land valued at Rs. 100/- Khewat No. 31. Rent with Khewat No. 32. Khata No. 73 to 79.
8. The expression "Fraji Hakiat Istamarari Lekin Mokarrari Nahi Gairmukabajat Rakam Solah Anna etc." Clearly goes to indicate that a tenure-holder's interest had been purchased by Sarswati Choudharain. The tenants-defendants alleged that they had taken settlement of the entire lands from the sons of Sarswati Choudharain in 1349 M.S. which is equivalent to 1942, but there is one document to show that Saraswati Choudharain was alive in 1945 because Ext. 6 is the extract copy of rent suit register showing that she had brought a rent suit in 1945 against Bibi Hasidan. If she was alive in 1945, there is no reason as to how her sons in her life time effected the settlement with the tenant defendants. In the present appeal we are not at all concerned with those tenant defendants, who have not filed appeal in this Court nor any cross appeal or cross-objection. They appear to be satisfied with the declaration that they are the shikmidars of the plaintiff. As a matter of fact, under the provisions of Section 48-A of the Bihar Tenancy Act the under-raiyats also can acquire right of occupancy and by the provisions of Section 48-B, they shall have same rights with regard to trees, bamboos etc. and the use of, succession to, and eviction from, such land as can be claimed by an occupancy raiyat. So apparently they have got nothing to lose, if they are made occupancy raiyats or under-raiyats.
9. According to plaintiff, he took the settlement of the disputed lands from his grand-mother Sarswati Choudharain. There is no reliable evidence to show this settlement. No document was executed to indicate the various terms and conditions of the settlement. On behalf of plaintiff two rent receipts have been filed. Ext. 2 is for the year 1946. The payment is dated 18th Asin, 1353. It was granted on behalf of Saraswati Choudharain. The next receipt is Ext. 2(a) which appears to have been granted on behalf of Srimati Bhavatarni Bala Dasi. The payment of rent was made on 1st Magh, 1362, which would be in 1955. In both these receipts plaintiff has been mentioned as 'Kaimidar'. This is rather very tin-usual. Generally in the rent receipts the status of the tenant is not mentioned. Moreover, I find some different writings concerning the khata numbers as mentioned in those receipts from that of the other writings. In any way, these two receipts cannot establish the status of the plaintiff. The extract copy of suit register (Ext. 6/a) also cannot improve matters for plaintiff. It only shows that an ex parte rent decree was obtained by Bhavatarni Bala Dasi in respect of four annas kist of 1360-1361. The learned State counsel has challenged the finding of the learned Subordinate Judge concerning this story of settlement. He has said that these receipts are collusive papers and got up in the wake of the abolition of zamindari as the vesting was done on 26-1-1955. Apparently the learned Subordinate Judge has taken an inconsistent view. If he had to accept the story of settlement by Saraswati Choudharain to plaintiff, he should have accepted it in respect of the entire suit lands, i.e., lands of both Lot Nos. 1 and 2. In that state of affairs, if plaintiff had acquired occupancy rights in the entire lands, no portion of it could vest in the State of Bihar, after the date of vesting, it does not matter whether the lands were then cultivated or uncultivated. Such a vesting could take place only, if the interest of the holder or the land was that of an intermediary and not an occupancy raiyat. It is, therefore, necessary to examine the various evidence and circumstances in order to arrive at a conclusion whether plaintiff had the status of an occupancy raiyat in respect of lot No. 2 lands or that of a tenure-holder or under-tenure-holder.
10. I may point out that Section 5(1) of the Bihar Tenancy Act defines a "tenure-holder" which means primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it. Under Sub-section (4), it is further laid down that in determining whether a tenant is a tenure-holder or a raiyat, the Court shall have regard to local custom and the purpose for which the right of tenancy was originally acquired. Sub-section 5 further mentions that where the area held by a tenant exceeds one hundred standard bighas, the tenant shall be presumed to be a tenure-holder until the contrary is shown. So when the point in issue is whether the status of a particular tenant is that of a tenure-holder or of a raiyat, it is important to bean in mind the distinction between the question for determining and the way to determine it. The important question to be decided is what was the original purpose of the tenancy. In other words, whether the tenant acquired the land primarily for the purpose of collecting rents or establishing tenants or primarily for the purpose of cultivating it himself. In accordance with the rule laid down in Sub-section 5 of Section 5 of the Bihar Tenancy Act when the area exceeds one hundred standard bighas, the Court shall presume that the tenant is a tenure-holder. This presumption is apparently based on the hypothesis that ordinarily it is impossible for a tenant to cultivate more than one hundred bighas by itself, but it may be pointed out that this presumption is, however, rebuttable. It can be rebutted either by the contents of the original lease or by the subsequent conduct of the parties or by the surrounding circumstances. It may be further clearly understood that although there is a presumption that when the area exceeds one hundred standard bighas, the tenant is a tenure-holder, there is no statutary presumption that when the area held by a tenant is less than one hundred standard bighas then that tenant is a raiyat.
11. In the instant case, as I have already indicated, there is no document to show as to how the tenancy in favour of plaintiff was initially created. The other members of his family do not come to challenge the right of plaintiff. P.W. 1, Rabindra Kumar Sinha who is the father and karpardaz of plaintiff and a son of parti Sarswati Choudharain has stated that one acre was equal to two bighas. There is no other evidence against it. So it can be safely said that settlement with plaintiff was in respect of more than one hundred bighas. So one main criterion according to Sub-section 5 of Section 5 of the Bihar Tenancy Act has been fulfilled. Secondly, it is to be noticed that plaintiff himself settled a major portion of the lands with tenants. So the settlement was taken not with a view of khas cultivation, but with a view to settle it with tenants. Plaintiff is a resident of another village and according to the evidence of D.W. 2, Din AH and D.W. 3, Khaitu, plaintiff has no kamat or house in village Gilahbari where the lands are situate. On behalf of plaintiff five witnesses had been examined but only P.W. 4, Aulad Ali said that paddy was produced in the disputed lands. This solitary statement has not been supported by anybody and so no reliance can be placed on it. On behalf of the State the Kramchan Ballabh Narain Misra had been examined and He stated that both those plot Nos. 1038 and 1039 were lying parti since long time and so vested in the State as gairmazarua land. In the notice which the plaintiff gave under Section 80 of the Code of Civil Procedure to the State, this land was mentioned as cultivable land and not cultivated land. On behalf of the State one affidavit was also filed on 24-1-1962 in the court of the learned Subordinate Judge and it was contended by that affidavit that both these plots were still lying parti. Of course, an affidavit cannot take the place of evidence but it is an important matter to be taken into consideration. Plaintiff ought to have controverted the allegation of the lands still lying by a counter-affidavit, but he did not do so. He did not apply even to take out a commission for the inspection of the lands, I further find that even in the cadastral survey some khatas were recorded as gairmazarua Malgujar e.g. Khata No. 74 and Khata No. 79. Some Khatas were mentioned as bakasht Malgujar, e.g. Khata No. 73 and Khata No. 75. In the revisional survey, of course, these two plots have been mentioned as parti and gairmazarua land.
12. The next question which falls for consideration is whether this parti land would vest under the provisions of the Bihar Land Reforms Act or would be left out in possession of plaintiff. As I have already indicated, there is no reliable evidence to show that plaintiff acquired occupancy right in respect of the entire lands. The definition of the word "tenure-holder" has been given under Section 2(k) of the Bihar Land Reforms Act of 1950. It enlarges the scope of a tenure-holder as mentioned in Section 5 of the Bihar Tenancy Act. Under the provisions of Section 4(a) of the Bihar Land Reforms Act, what is saved from vesting is the real raiyati interest. Under Section 6 of that Act certain lands in khas possession of the intermediary are to be retained by them on payment of rent to be fixed by the State Government. The language is clear that the lands which were in khas possession of an intermediary on the date of such vesting would not be taken possession of by the State by virtue of Section 4(a) of the Act. The expression "khas possession" was subject matter of interpretation in various cases. In the case of Brijnandan Singh v. Jamuna Prasad Sahu 1965 B.L.J.R. 122, it was held that the expression "khas possession" in respect of cultivable lands in Section 6 of the Bihar Land Reforms Act has been used in a technical sense and it means those lands which are in private or personal possession of the landlord as contra-distinguished with those which are in possession through tenants. It does not merely import an idea of an actual physical possession as is called occupation, but that of juridical possession also. Similarly, in the Full Bench case of Mahanth Sukhdeo Das and Anr. v. Kashi Prasad Tiwari 1958 B.L.J.R. 559, it was held that the expression "khas possession" must includes constructive possession also and they do not mean only actual physical possession. The. lands not under cultivation though in khas possession of an intermediary are outside the scope of Section 6. But this view was not accepted by their Lordships of the Supreme Court. In the case of Suraj Ahir v. Prithi Nath Singh 1963 B.L.J.R. 1, their Lordships differed from the view taken by the Patna High Court and remarked as follows :
We do not agree with this view when the definition of 'khas possession' means the possession of a proprietor or tenure-holder either by cultivating such land himself with his own stock or by his own servants or by hired labour or with hired stock. The mere fact that a proprietor had a subsisting title to possession over certain land on the date of vesting would not make that land under his 'khas .possession'. This view was taken in accordance with the definition of the expression 'khas possession' as given in Section 2(k) of the Bihar Land Reforms Act. In another case of the Supreme Court Ram Ran Bijai Singh and Ors. v. Behari Singh alias Bagaudha Singh and Ors. 1963 B.L.J.R. 868, a similar view was taken. There again, importance was placed on the definition of the expression 'khas possession' as mentioned in Section 2(k) of the Bihar Land Reforms Act Their Lordships remarked "we consider that this equation of the right to possession with 'khas possession' is not justified by principle or authority.
13. In view of what has been discussed above, it must be held that plaintiff was not in khas possession of lot No. 2 lands when the intermediary interest vested in the State, Those lands were, therefore, correctly recorded in the revisional record of righ' as galrmazarua lands of the State. The result would be that plaintiff's appeal must be dismissed.
14. Before parting, I must observe that if the State of Bihar over-think to settle these lands with any person, the claim of the plaintiff would be given top priority. This appeal is, therefore, dismissed and in the circumstances of the case, I make no order as to costs, A.B.N. Sinha, J.
15. I agree.