Back
1933 Supreme(SC) 69
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD THANKERTON, LORD RUSSELL OF KILLOWEN, SIR JOHN WALLIS, AND SIR LANCELOT SANDERSON.
ANUP MAHTO - Appellant
Versus
MITA DUSADH - Respondents
On appeal from the High Court at Patna.
Decided On : Dec. 7. 1933.
Solicitors for appellant :Barrow, Rogers & Nevill. Solicitors for respondents: Francis & Harker.
Section 181 of the Bengal Tenancy Act, 1885, does not prevent a raiyat from acquiring occupancy rights against a landlord who holds land on service-tenure; it only prevents the service-tenure holder from acquiring rights against the grantor that conflict with the grant.
Headnote:(A) Bengal Tenancy Act, 1885 - Sections 5, 20, 21, 25, 44, 49, 103b, 178, and 181 - Status of tenure-holders and raiyats - Occupancy rights in service-tenure lands - The record-of-rights carries a presumption of correctness under Section 103b. A tenant recorded as holding under a tenure-holder is a raiyat, not an under-raiyat. The use of vernacular terms such as "shikmi" in the record does not conclusively establish the status of an under-raiyat if the context of the khatian indicates the tenant holds under a tenure-holder rather than a raiyat.
(B) Bengal Tenancy Act, 1885 - Section 181 - Effect of saving clause on occupancy rights - Section 181 is a saving clause intended to prevent the holder of a service-tenure from acquiring rights against the grantor that conflict with the grant. It does not preclude a raiyat from acquiring occupancy rights against a service-tenure holder who acts as the landlord. The statutory protection against arbitrary eviction provided to settled raiyats under Sections 20 and 21 is not extinguished by the nature of the landlord's tenure. The legislature would not deprive a large class of raiyats of statutory protections while keeping them subject to other provisions of the Act.
(C) Distinction in grants - A distinction exists between a grant of land on service-tenure to a raiyat for cultivation in lieu of wages and a grant to a tenure-holder whose emoluments are derived from collecting rents from raiyats. In the latter case, the grant is an assignment of landlord rights and does not interfere with the raiyats' customary rights to acquire occupancy.
Facts of the case:
The respondents held land as a revenue-free jagir for watching roads. The appellant claimed to be a raiyat with occupancy rights, while the respondents contended the appellant was an under-raiyat liable to ejectment. The record-of-rights described the respondents as tenure-holders and the appellant as a tenant under them, although the term "shikmi" was appended to the appellant's name.
Findings of Court:
The court found that the respondents were tenure-holders and the appellant was a raiyat. Consequently, the appellant, having been in continuous possession for over twelve years, acquired occupancy rights under the Act and could not be ejected.
Issues: Whether the original grantee of land on service-tenure is a tenure-holder or a raiyat under the Act, and whether Section 181 of the Act precludes a raiyat from acquiring occupancy rights against a service-tenure holder.
Ratio Decidendi: Section 181 is a saving clause that protects the grantor of a service-tenure from the tenure-holder; it does not deprive raiyats of the statutory occupancy rights conferred by the Act against such tenure-holders. The right of occupancy is a statutory protection for the cultivating tenant that persists as long as the tenancy subsists, regardless of whether the landlord's tenure is a service-tenure liable to resumption.
Result: Appeal allowed.
Legal Category Hierarchy
-
land law
-
tenancy law
- occupancy rights
- service tenures
-
tenancy law
-
practice and procedure
-
evidence
- record of rights
-
evidence
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
