Patna High Court
Bibi Khurshid And Ors. vs State Of Bihar And Ors. on 15 March, 1993
Equivalent citations: AIR1994PAT39, 1993(41)BLJR984, AIR 1994 PATNA 39, 1993 BLJR 2 984 (1993) 2 BLJ 432, (1993) 2 BLJ 432
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This application is directed against an order dated 4-11-1991 passed by the Sub-Divisional Magistrate, Bikramganj (Respondent No. 3), whereby he refused to take action on their application purported to be under Section 69 of the Bihar Tenancy Act.
2. The fact of the matter is not much in dispute. The petitioners are said to be the recorded tenants of plot Nos. 4034 and 4198 appertainng to khata No. 979 measuring an area of 4 acres 3 decimals. Respondents 4 & 5 have been recorded as Sikmidars in the remarks column of the said khatian. Petitioner No. 2 filed a suit for ejectment against the said defendants, as also for a decree for a sum of Rs. 18.972.80 being the price of the produce rent for two years and also claimed the produce rents for subsequent years. The said suit was registered as title suit No. 344 of 1974. A preliminary decree was passed in the said suit.
3. According to the petitioners in that suit, inter alia, the following issues were framed :
"(5) Is the plaintiff an occupancy raiyat of the Schedule A land or was as tenure holder and her rights extinguished after the vesting of the tenure under the Bihar Land Reforms Act?
(6) Are the defendants occupancy raiyats or under raiyat of the Schedule A land whether the defendants have acquired occupancy right in case they are held to be under raiyat?"
4. The findings of the Civil Court on the aforementioned issues are as follows :
"(27) In the result I have come to a conclusion that the plaintiff is an occupancy raiyat of the schedule A land and was never a tenure holder and her right did not extinguish after the vesting of the tenure in the State of Bihar. I have also come to conclusion that the defendants are under raiyat of the Schedule A land.
(28) Since the plaintiff (p.s. 7) has admitted that the defendants are in continuous possession of the suit land since 1948 and also because defendants witnesses have all supported the possession of the defendants for about 30 to 31 years it is quite clear that the defendants have acquired occupancy right as under raiyat in the suit land as per Section 48(c) of the B. T. Act. These issues are decided accordingly."
5. Admittedly an apepal has been preferred in this Court by the said respondents against the aforementioned judgment being First Appeal No. 38 of 1980. Petitioners have filed a separate proceeding for determination of the rent. An execution case has also been filed by the petitioners for executing the aforesaid decree. According to the petitioners as the process involved in the said execution case would be lengthy, an application under Section 69 of the Bihar Tenancy Act (hereinafter referred as 'the said Act') was filed. By reason of the impugned order, the said application has been rejected.
6. Mr. Dhrub Narayan, learned counsel appearing on behalf of the petitioners submitted that in view of the provisions contained in Section 48A read with Section 69 thereof, the Sub-Divisional Magistrate should not have rejected the application only on the ground that the appeal against the decree passed in favour of the petitioner is pending consideration in this Court.
7. Mr. S. S. Ashgar Hussain, learned counsel appearing on behalf of Respondent 4 and 5, on the other hand, submitted that in the facts and circumstances of the case Section 69 of the said Act has no applicaiton. According to the learned counsel as the status of the petitioners as the landlord of the concerned respondents is sub-judice, the impugned order must be held to have validly been passed, as according to the learned counsel the right of the petitioners to receive rent is yet to be finally determined by this Court. It has further been submitted that in any event as admittedly the petitioners consider the Respondents 4 and 5 as their Bataidars, any claim under Chapter VIII of the Bihar Tenancy Act wherein Section 69 occurs is not tenable.
8. Chapter VII of the B. T. Act deals with under raiyats. Section 48A of the said Act provides for limit of produce rent recoverable from under raiyats. Section 89 of the said Act prohibits ejectment of a tenant except in execution of decree.
9. Chapter VIII deals with general provisions as to rent. Section 69 of the said Act reads as follows :
"Order for dividing produce -- (1) Where rent is taken by division of the produce--(a) if either the landlord or the tenant neglects to attend, either personally or by agnet, at the proper time for making the division, or
(b) if there is a dispute about the division of the produce, the Collector may on the application of either the landlord, if made within such period as may be prescribed, or the tenant, and on his despositing such sum on account of expenses as the Collector may require, make an order appointing such officer as he thinks fit to divide the produce.
(2) The Collector may, without such an application, make the like order in any case where in the opinion of the District or Sub-divisional Magistrate the making of the order would be likely to prevent a breach of the peace.
(3) Where a Collector makes an order under this section, he may, by order, prohibit the removal of the produce until the division has been effected, but an order made by the Collector under this sub-section shall not prevent the execution of any order passed by the Court for the distraint of the tenant's crops.
(4) Every Officer appointed by the Collector under Sub-section (1) to divide the produce shall for the purposes of the Indian Penal Code (5 of 1860), be demeed to be a public servant."
10. An under raiyat is also a tenant within the meaning of Section 3(3) of the said Act as would be evident from Section 4 thereof, Section 5 defines tenure-holder and raiyat. In order to become an under-raiyat thus, there must be an element of agreement or contract between the raiyat and under raiyat. Although Section 48-A provides for the limit of produce rent recovered from under-raiyat, Section 69 would apply in a case where an under raiyat has not paid rent inasmuch as a raiyat in relation to an under raiyat is a landlord and as noticed hereinbefore an under raiyat is also a tenant.
11. In the impugned order, respondent No. 3 has merely refused to exercise his jurisdiction in view of the pendency of appeal as also on the ground that there does not appear to be any immediate apprehension of breach of peace. In view of the stand taken by the respondents 4 and 5 themselves, it is evident that there is a dispute about the division of the produce and thus, an application under Section 69 of the said Act, in my opinion, would be maintainable.
12. It is true an appeal against the judgment and preliminary decree passed by the Civil Court is pending consideration. However, it is well known that filing of an appeal by itself will not amount to stay of execution thereof. The right of the petitioner has been determined in the said suit. The said finding would be binding upon the revenue courts unless the same are set aside. The operation of the judgment and decree passed by the Civil Court has also not been stayed. It is for the respondents to obtain appropriate order from the appellate court, but so long the same is not done, the decree passed by the Civil Court shall remain in operation.
13. In this view of the matter, this application is allowed. The impugned order is Set aside and the respondent No. 3 is hereby directed to apply his mind afresh and pass appropriate order in accordance with law.
14. In the facts and circumstances of the case, there will be no order as to costs.
R.M. Prasad, J.
15. I agree.