Judgement

Appeal (No. 113 of 1929) from a judgment of the High Court (February 22, 1928) reversing, so far as material to the present appeal, a decree of the Subordinate Judge of Patna (April 21, 1925), which affirmed a decree of the Munsifs Court.

The respondents, members of a joint Hindu family, instituted a suit against the appellant in the Court of the Munsif of Patna for possession of about 37 bighas of land in mauza Lachampur Karja. The land in suit was part of a jaghir held by the respondents as road chaukidars. By their plaint they alleged that the appellant was a mere darjotdar (under-raiyat) in respect of the land, and that they had served on him a notice to quit under s. 49 (6) of the Bengal Tenancy Act, 1885. The appellant by his written statement pleaded, so far as material to the present appeal, that he was the plaintiffs raiyat with occupancy rights; and could not be ejected.

A considerable body of documentary and parol evidence was admitted at the trial. The documentary evidence included certified copies of extracts from the record-of-rights, namely, khatian No. 463 issued to the plaintiffs, and khatian No. 2 issued to the defendants. There was no evidence as to the terms of the plaintiffs jaghir, nor as to when it was granted.

The Munsif dismissed the suit. He found that the plaintiffs were tenure-holders, and the defendant a raiyat, and that the defendant with his predecessors had been in continuous possession since before 1898. He held that the defendant had therefore acquired occupancy rights under the Bengal Tenancy Act, 1885 ; he was of opinion that s. 181 did not preclude occupancy rights being acquired against the holders of a service-tenure.

The Subordinate Judge dismissed an appeal, expressing his agreement with the Munsif on each of the above points.

An appeal to the High Court was allowed and a decree for possession made except as to three bighas of land for which the defendant had obtained in 1902 a permanent lease from one of the plaintiffs. Macpherson J., with whose judgment Kulwant Sahay J. agreed, was of opinion that according to the record-of-rights the plaintiffs were not tenure-holders but raiyats; the absence of a khewat as to them showed that conclusively. The lower appellate Court had misdirected itself and its findings were vitiated thereby. The plaintiffs being raiyats the defendant could be only an under-raiyat ; his claim to occupancy rights under the Act therefore failed. Further, s. 181 of the Act precluded occupancy rights being acquired in land held under service-tenure of a police character. The judgment is reported at I.

L. R. 7 Pat. 566.

The present appeal first came on for hearing in November, 1932, but was adjourned in consequence of an objection to its competence, that objection being dismissed on May 5, when the further hearing was adjourned see L. R. ,60 I. A. 366.

1933. July 21, 22, 24. Hyam for the appellant. The lower appellate Court found on the evidence that the respondents were tenure-holders and the appellant a raiyat. Those were findings of fact with which the High Court had no jurisdiction to interfere under the Code of Civil Procedure, ; ss. 100, 101 Midnapore Zamindary Co. v. Secretary of State for India (( 1929) L. R. 56 I. A. 388.), Wali Mohammad v. Mohammad Bakhsh. (( 1929) L. R. 57 I. A. 86.) Whether or not the findings, which were those of both lower Courts, were binding, they were right. There was no misdirection as to the entries in the record-of-rights. The appellants khatian describes the respondents as tenure-holders. The word " shikmi " used as to the appellants status is insufficient to show that he was merely an under-raiyat. The respondents khatian shows that they were not raiyats, because no entry appears in the column provided for stating whether a raiyat has or has not occupancy rights. The High Court was mistaken in supposing that if the respondents were tenure-holders there must have been a khewat. A tenure-holder is not necessarily recorded i