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SUPREME COURT OF INDIA
16th January, 1956
BOSE, VENKATARAMA AYYAR AND CHANDRASEKHARA AIYAR, JJ.
Harihar Prasad Singh and another, Appellants
Versus
Deonarain Prasad and others, Respondents.
Civil Appeal No. 107 of 1953.
Advocates Appeared
Mr. P. K. Chatterjee, Advocate for Appellants; Mr. Tarachand Brij Mohanlal, Mr. B. C. Misra and Mr. S. Barneshwar Prasad, Advocates, for Respondents (Nos. 3 to 6, 20 to 25 and 27 to 39).
Transfer of Property Act, 1882, S. 76 (a)-Exception to the rule that a person cannot create a higher right than he hasLessee inducted on land by mortgagee under power of management-Legal right of lessee to claim occupancy rights in the land.
Evidence Act, 1872, Ss. 13, go-Scope.
Certain agricultural lands in Mauza Chowki in Bihar State belonged to K, F and others, and were u8ufructurarily mortgaged by them on 10-8-1900 to Band M under two sudbharna deeds. In execution of a money decree passed against the mortgagors, a portion of the above lands was brought to sale on 11-6-1907 and purchased by R, the undivided uncle of the first plaintiff. On 13-12-1913 the remaining portion of that land was purchased by the first plaintiff from the mortgagors, and thus, the plaintiffs who were members of a joint Hindu family became entitled to all the interests of the mortgagors in the suit lands. In 1943 they deposited under S. 33 of the Transfer of Property Act, the amounts due on the mortgage deeds, in the Court of the District Munsif, Monghyr. The defendants of the first party who were the representatives of these mortgagees withdrew the amount, and the mortgages thus became redeemed; when the plaintiffs attempted to take khas or actual possession of the lands, they were obstructed by the defendants of the second party who claimed occupancy rights therein. The plaintiffs then instituted a suit for recovery of possession of the lands from the second party defendants.
The plaintiffs alleged that the lands werc kamat khudkasht, which had been in the personal enjoyment of K and F and thereafter of the mortgagees and the defendants of the first party by virtue of the sudbharna deeds, that the second party defendants claimed rights as occupancy raiyats under a settlement by the mortgagees, that the settlement was not real or bona fide, and was not binding on the mortgagors. In the alternative, the plaintiffs claimed damages against the defendants of the first party, if it was found that the second party had acquired occupancy rights under a settlement from them ..
Both sets of defendants denied that the lands were kamat lands, or that the defendants of the first party settled the defendants of the second party as raiyats on the land. They pleaded that the latter had been in possession even prior to the mortgages, under a settlement with the mortgagors, and that accordingly the plaintiffs were entitled neither to possession from the second party nor damages from the first party. Held (allowing the appeal) : (1) Section 120 (2), Bihar Tenancy Act, VIII of 1885, enacts a presumption that "land is not a proprietors private land, until the contrary is shown." In the final notification published under S. 103-A of the Act, the lands were recorded as in the possession of the second party defendants, whose status was described as "kaimi" or settled raiyats. Under S. 103-B (3), "every entry in a recordof-rights so published shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by cvidence to be incorr~ct." The result of both these provisions is that the burden is on the proprietor clearly to establish that the lands are his private lands.
(2) Section 120 merely enacts certain rules of evidence to be followed in an enquiry, as to whether a disputed land is ziraat. hen in such enquiry the facts mentioned in S. 120 (1) are established, the law raises a presumption juris et dejure that the lands are private. But where such evidence is not available, that fact can stiIJ be established by other and satisfactory evidence.! What has to be decided therefore is whether the evidence actually adduced by the plaintiffs in the present case is sufficient to discharge the burden which the law casts on them and to prove that the lands are kamat or sir lands.2
(2) The word khudkasht" means personal cultivation, and that is a neutral expression, which might include both private lands and bakasht lands, that is to say, raiyati lands, which had come into the possession of the proprietor by surrender, abandonment or otherwise. But the word kamat has a definite connotation, and means private lands (Vide S. 116, Bihar Tenancy Act).
(4) Description in a mortgage-deed by the mortgagors of the land mortgaged as propereties "in our Sir and khas possession" may not be regarded as admissions by the mortgagees as the deeds were executed by the mortgagors; but they are certainly admissible under S. 13, Evidence Act, as assertions of tide, and when it is under these documents that the mortgagees claim their probative value as against them and as against their lessees who claim under them is high.
(5) The presumption enacted in section 90 of the Evidence Act can be raised only with reference to original documents and not to copies thereof. Further, if the document happens to be signed by the agent of the person against whom the presumption is sought to be raised and there is no proof that he was an agent, S. 90 does not authorise the raising of a presumption as to the existence of authority on the part of the agent to represent that person.
The true effect of a record-of-rlghts under S. 103•A of the Bihar TenaDcy Act is not to create rights where none existed but simply to raise a presumption under S. 103-B that such rights exist, and that presumption is one liable to be rebutted. A person who attacks a record made under S. 103-A as incorrect discharges the burden which the law casts on him under S. 103•B by showing that it was not justified on the materials on which it is based,3 And where no evidencc was placed
1.A.I.R. 1923 Pat. 276 and A.IiR. 1926 P.C. 79 relied upon.
2.The word, Sir is synonymous with kamat and ziraat ."and means private lands of the proprietor.
3.A.I.R. 1918 Cal. 807 and A.I.R! 1~2~ <;:11,1, 450 relied upon. before the authorities who made the record, he has only to produce evidence which satisfies the Court that the entry is erroneous. Whether the question is considered with reference to the pre.sumption under S. 120(2) or S. 103.B, the position is the same. The plaintiffs who claim that the lands are kamat have to establish it by clear and satisfactory evidence. If the evidenee adduced by them Is sufficient to establish it the presumption under S. 103-B equally with that under S. 120 (2) become.il displaced.
(7) Before a person can claim occupancy rights under S. 21, he establishes that he is a raiyat as defined in Ss. 5(2) and 5(3) and as the defendants of the second party acquired the right to hold the lands for the purpose of cultivation from the first party mortgagees and not under the mortgagors, they are not raiyatsas defined in S. 5 (3), and can claim no rights under S. 21.
(8) A mortgagee is no doubt the transferee of an interest in immovable property, and may in a loose sense be said to be the owner of that interest. But the definition of a proprietor requires that he should own the estate or part thereof and not merely an interest therein. It would be a contradiction in terms to say of a mortgagee that he owns the estate over which he owns an interest. A mortgagee is neither a proprietor nor a tenure-holder, and a tenant inducted by him on the lands is nota raiyat within the definition of those terms under the Act.1 The lands were under the personal cultivation of the mortgagors at the time when they were mortgaged; the mortgagees therefore cannot be taken to be tenure-holders.
(9) The law is that a person cannot confer on another any right higher than what he himself possesses, and therefore, a lease created by a usufructuary mortgagee would normally terminate on the redemption of the mortgage. Section 76(a) of the Transfer of Property Act, 1882 enacts an exemption to this rule. If the lease is one which could have been made by the owner in the course of prudent management it would be binding on the mortgagors, notwithstanding th""t the mortgage has been redeemed. Even in such a case, the operation of the lease cannot extend beyond the period for which it was granted.
(10) Assuming that the mortgagees had the power under S. 76(a) of the Transfer of Property Act to continue the lessees as tenants of the lands after the termination of the period fixed therein that would confer on them at best the status of tenants from year to year and not give them the right to continue in possession after the termination of the agricultural year during which the redemption takes place. In this view, the power of the mortgagee under S. 76(a) Transfer of Property Act, to induct tenants in the usual course of management would not avail the lessees to claim occupancy rights over the lands.
(11) Section 21 of the Bihar Tenancy Act confers on settled raiyats a permanent right of occupancy, provided the conditions mentioned in that section are satisfied. But this right is a creature of the statute, and cannot be claimed apart from its provisions. A mortgagee is neither a proprietor nor a tenure-holder, and a person settled by him on the
1.Mahabir Gore and others v. Harbans Narain Singh and others (1952) S.C.R. 775:
A.T.R. 1952 S. C. 205 relied upon. lands does not enjoy the status of raiyat under Ss. 5(2) and 5(3) of the Act. He is, therefore, not a person entitled under the terms of the statute to any occupancy right. I - Bihar Tenancy Act, 1885, Sections 21, 103A, 103B(3), 116, 120(2)-Scope and effect-Private lands-Presumption in favour of-Burden of proof-how discharged-Meaning of khudkasht", “kamat", "Sir" -Rule of evidence in S. 120-Mortgagee is neither proprietor nor tenure holder-Lessee inducted on mortgauged lands by mortgagee are not raiyats Right of occupancy is creature of statute. - Transfer of Property Act, 1882, Section 76 (a)-Exception to the rule that a person cannot create a higher right than he has-Lessee inducted on land by mortgage under power of management-legal right of lessee to claim occupancy rights in the land. - Sections 13, 90-Recital in documents excuted ante litem
motam -Their admission in evidence as showing nature of right claimed
Extent of -presumptions under S. 90 of the Act.
Judgement
VENKATARAMA AYYAR, J. : The properties which are the subject matter of this litigation are agricultural lands of the extent of 18 acres 23 cents situate in Mauza Chowki. They originally belonged to Khiran Rai, Firangi Rai and others, and were usufructuarily mortgaged by them on 10-8-1900 to Babunath Prasad and Babu Misri Lal under two sudbharana deeds, Exhibits 2 and 3, for a sum of Rs. 1,600.
The defendants of first party are the representatives of these mortgagees. In execution of a money decree passed against the mortgagors 9 acres 6 cents out of the above lands were brought to sale on 11-6-1907 and purchased by Rameshwar Prasad Singh, the undivided uncle of the first plaintiff. On 23-12-1913 the remaining extent of 9 acres 17 cents was purchased by the first plaintiff from the mortgagors, and thus, the plaintiffs who were members of a joint Hindu family became entitled to all the interests of the mortgagors in the suit lands.
In 1943 they deposited under S. 83, T. P. Act, the amounts due on the mortgage deeds, Exhibits 2 and 3, in the Court of the District Munsif, Monghyr. The defendants of the first party withdrew the amount, and the mortgages thus became redeemed.
When the plaintiffs attempted to take khas or actual possession of the lands they were obstructed by the defendants of the second party who claimed occupancy rights therein. The plaintiffs then instituted the suit out of which the present appeal arises in the Court of the Subordinate Judge, Monghyr, for recovery of possession of the lands from the second party defendants.
2. The plaintiffs alleged that the lands were kamat khudkasht , which had been in the personal enjoyment of Khiran Rai and Firangi Rai and therefore of the mortgagees and the defendants of the first party by virtue of the sudbharna deeds, Exhibits 2 and 3, that the second party defendants claimed rights as occupancy raiyats under a settlement by the mortgagees, that the settlement was not real or bona fide , and was not binding on the mortgagors.
In the alternative the plaintiffs claimed damages against the defendants of the first party, if it was found that the second party had acquired occupancy rights under a settlement from them. Both sets of defendants denied that the lands were kamat lands, or that the defendants of the first party settled the defendants of the second party as raiyats on the land.
They pleaded that the latter had been in possession even prior to the mortgages, Exhibits 2 and 3, under a settlement with the mortgagors, and that accordingly the plaintiffs were entitled neither to possession from the second party nor damages from the first party.
3. The Subordinate Judge of Monghyr who tried the suit, held that the lands were private lands of the proprietors, that the defendants of the second party or their predecessors-in-title had not been inducted on the lands by the mortgagors that they were put into possession by the mortgagees only under the lease deed, Exhibit 2(a) dated 27-5-1905, that they were mere creatures of the first party, and that the settlement was not bona fide and not binding on the plaintiffs. He accordingly granted a decree in favour of the plaintiffs in ejectment.
Against this judgment, there was an appeal by the defendants to the High Court of Patna, which agreed with the Subordinate Judge that the defendants of the second party were inducted into possession only in 1905 under the lease deed, Exhibit 2(a), and that they were not raiyats settled by the mortgagors prior to 1900.
But the learned Judges held that the suit lands were not proved to be sir or private lands, that the second party defendants were not the creatures of the first party, that the lease deed Exhibit 2(a) was a bona fide transaction and the recognition of the defendants of the second party by the mortgagees as tenants would confer occupancy rights on them.
In the result, the suit was dismissed. The plaintiffs appeal. It was be stated that the alternative claim for damages ag
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