Patna High Court
Mazhar Ali vs Hakimuddin And Ors. on 23 February, 1965
Equivalent citations: AIR1965PAT489, AIR 1965 PATNA 489, ILR 46 PAT 1 1965 BLJR 420, 1965 BLJR 420
JUDGMENT Narasimham, C.J.
1. This is an appeal by the plaintiff against the judgment of a Single Judge of this Court affirming the appellate judgment of the Subordinate Judge of Purnea and dismissing the plaintiff's suit for declaration of title and recovery of possession of 13 bighas 19 khatas and 4 dhurs of land in khatas Nos. 51 and 69 situate in mauza Fulhari. Police Station Kishanganj. District Purnea.
2. The plaintiff's case was that ne had obtained raiyati settlement of the said lands from the Padhoo Mian (a co-sharer patnidar) by a registered deed dated the 23rd June, 1943. He further stated that though the said settlement was for a period of five years only, which would ordinarily have expired on the 23rd June, 1948. nevertheless the legislature intervened and passed the Bihar Tenancy (Amendment) Act, 1947 (Rihar Act XXIII of 1947), by virtue of which a new Section 21 A was inserted in the Bihar Tenancy Act (hereinafter referred to as the Act) The plaintiff claims to have obtained occupancy status by virtue of that amendment and hence he was Not liable to eviction. The defendants' plea was that after the expiry of the said settlement the plaintiff himself gave up possession of the said lands which were taken in khas possession by the then landlords (defendants 4 and 5) who subsequently settled the same with defendants 1 to 3.
3. On the pleadings of the parties, then fore, the main issue for considerati on was whether the plaintiff gave up possession of the suit lands (issue No. 5) after the expiry of the settlement with him by Padhoo Mian in 1943, and if the story that he gave up possesion is not believed, whether the plaintiff could claim occupancy status by virtue of Section ?1-A of the Act. The original Court, namely, the Munsif, 2nd Court, Kishanganj. disbelieved she defendants' contention of the plaintiff giving up his possession and defendants 1 to 3 obtaining possession of the lands and held that the plaintiff had proved his possession from the date of the settlement, namely. 1943. till the date of the commencement of the suit. He further held that as the plaintiff was "undisputedly a settled raivat of the village" he acquired or cupancy rights and hence decreed his claim. On appeal, however, the learned Subordinate Judge was of the opinion that the plaintiff was in possession till 1358 Fasli (1951) but that the evidence about his possession thereafter, till due date of the filing of the suit, wass not satisfactory. He adversely commented on the trial court's observation that the status of the plaintiff as a settled raiyat of the village was act disputed and observed that there was no evidence to show that the plaintiff was a settled raiyal, hence he could not gel the benefit of Section 21 of the Act.
But the learned Subordinate Judge was fully conscious that if Section 21-A of the Act be held to apply, the plaintiff would undoubtedly get occupancy rights by virtue of that section. But as Counsel for the parties could not enlighten him about the exact date on which the Amending Act of 1947 was brought into force he thought that he could not apply the provisions of Section 21-A in favour of the plaintiff. The learned Subordinate Judge had obviously shirked his responsibility Once an Act is placed on the statute book, the court cannot leave it to the counsel for the parties to point out to it the appropriate notification by which the Act was brought into force, as if it were a simple question of fact, ami on their in ability to supply him that information it cannot dismiss the plaintiff's suit. The court is expected to take judicial notice of all gazette notifications and it should have made a further probe into the matter and found out the date on which the Amending Act came into force and then examined whether Section 21-A of the Act would be of any help to the plaintiff.
4. When the litigation was taken up in second appeal before the learned Single Judge, his attention was invited to the appropriate notification, from which it was clear that the said Amendment Act came into force on the 11th December, 1947; hence Section 21-A of the Act would come into operation and the plaintiff would get occupancy status in respect of the lands for the time being held by him as a raivat. even though he may not he a settled raiyal The concurrent finding of the two lower courts was that the plaintiff continued in possession as a raiyal at any rate of the 23rd June. 1948. Hence the learned Single Judge thought that the plaintiff would get occupancy Status by virtue of that section.
5. But the learned Single Judge dismissed the plaintiff's suit on the basis of a new point which bad not been taken up by any of the parlies in the two lower courts. The plaintiff--claim all along was that he obtained raiyati settlement from Padhoo Mian who was only a co-sharer palnidar The learned Single Judge, therefore, relying on a Full Bench decision of this Court in Bibi Kaniz Fatma v. Hossainuddin Ahmad. AIR 1943 Pat 194 (FBI hold that a co-sharer landlord cannot without the consent or authority, express or implied of the other co-sharers, induct a raiyat on the land. He thought that the said Full Bench decision could directh apply bere and hence dismissed the suit.
6. Mr. L.K. Choudhary for the appellant urged that the learned Single Judge ought not to have allowed a new point to be taken up at such a belated stage as it was a mixed question of law and lad. It is true that the plaint admits that the original settlement with the plaintiff was only by Padhoo Mian who was only a co-sharer landlord But it was nowhere admilted that when Padhoo Mian made the settlement with the plaintiff he did not have the express or implied authority or consent of the other co-sharers. The defendants also in their written statement did not take any such plea and consequently uo issue was raised on this question. Before applying the principle laid down in Bibi Kaniz Fatma's case, AIR 1943 Pat 194 (FB) the learned Single Judge should him carefully examined whether on the pleadings of the parties and the matters in controversy between them that Full Bench decision has any application The question as to whether the other co-sharers had given any consent or authority, whether expressly or by implication, is a mixed question of law and fart, and unless the necessary facts are admitted or challenged this court at the second appeal stage cannot assume that such consent or authority was not given and that consequently the plaintiff did not become a raiyat from the date of the settlement from Padhoo Mian in 1943.
7. The danger of allowing such mixed questions of law and fact to be taken up at the second appeal stage will be obvious Sf the plead ings are further examined. Even in the written statement it is admitted that the khatas which originally belonged to different raiyats were sold in execution of a vent decree .met purchas ed by Padhoo Mian who was one of the co-sharer landlords and who obtained possession of the same. It was thereafter that he settled the lands with the plaintiff by the registered document of 1943. Mr. Choudhary for the appellant, therefore, urged that on the admitted facts of the written statement the plaintiff could as well have urged that Padhoo Mian obtained a special right under Sub-section (2) of Section 22 of the Act when he purchased the raiyali holding of the tenant and look possession of the same, and that when he made the settlement with the plaintiff in 1943 the latter became a raival as expressly recognized in the latter portion of that sub-section. It is true that Padhoo Mian's patni interest was subsequently sold away and purchased by defendant No. 4 and similarly the other 8 annas interest in the patni which belonged to one Huruk Chand was also sold away and purchased by defendant No. 5 who is none else but the son of Padhoo Mian But the subsequent transfer of the land-lord's right does not affect the status of the plaintiff as a raival by virtue of a settlement made with him by a co-sharer landlord who was in possession of the occupancy holding under Sub-section (2) of Section 22 of the Act. I do not wish to dicuss this matter further because the parties did not join issue on this question. I am only referring to this aspect to show the danger of allowing new points drafting with mixed questions of law and fad to be taken up at the second appeal stage.
8. I must, therefore, hold that it was not open to the learned Single Judge io examine whether the registered deed of settlement of 1943 in favour of the plaintiff by Padhoo Mian was made without the consent or authority, express or implied, of the other co-sharer landlords. On the other concurrent findings of fact it necessarily follows that the plaintiff remained in possession of the land as a raivat on the dale on which the Amending Act of 1947 came into force and he became an occupancy raiyat in respect of the lands by virtue of Section 21-A. For these reasons the Judgment of the learned Single Judge is set aside and the plaintiff's suit is decreed with costs throughout.
G.N. Prasad, J.
9. I agree.