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1929 Supreme(SC) 71
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD CARSON, SIR GEORGE LOWNDES, AND SIR BINOD MITTER.
MIDNAPUR ZAMINDARY COMPANY, LIMITED - Appellant
Versus
SECRETARY OF STATE FOR INDIA IN COUNCIL (DEFENDANT NO.1) - Respondents
On Appeal from the High Court at Calcutta.
Decided On : July 29. 1929.
Solicitors for appellants :Burton, Yeates & Hart. Solicitor for respondent: Solicitor, India Office.
A second appeal cannot be entertained on the ground of an erroneous finding of fact if the first appellate court had proper evidence. Additionally, the purpose of acquisition determines whether a holding is a tenure or rayati, and specific tenancy suits are governed by general limitation laws.
Headnote:(A) Bengal Tenancy Act, 1885 - Sections 5, 103B, 104H, 111A; Code of Civil Procedure, 1908 - Section 100 - Status of land holding - Occupancy raiyat versus tenure-holder - Scope of second appeal - Finding of fact by first appellate court is final if based on evidence proper for consideration, regardless of whether the finding is erroneous. An erroneous finding of fact is distinct from an error or defect in procedure.
(B) Bengal Tenancy Act, 1885 - Determination of status - The real test to determine whether a holding is a tenure or rayati depends upon the purpose for which the holding was acquired.
(C) Bengal Tenancy Act, 1885 - Section 111A and Section 104H - Maintainability and Limitation - A suit for declaration of status as an occupancy raiyat may fall within the proviso to Section 111A and is governed by the general period of limitation provided by the Indian Limitation Act, rather than the six-month limitation period prescribed under Section 104H.
Facts of the case:
The appellants sought a declaration that they were occupancy raiyats and not tenure-holders of a specific land holding and that the entry in the record-of-rights designating them as tenure-holders was a nullity. The first appellate court found that the predecessors of the appellants had acquired and used the land for cultivation, concluding they were occupancy raiyats. However, the second appellate court reversed this, holding that there was no reliable evidence to displace the presumption that the record-of-rights was correct.
Findings of Court:
The court found that the first appellate court had considered proper evidence, including settlement records and account books, to conclude the land was acquired for cultivation. The statutory presumption regarding the record-of-rights was appropriately weighed but displaced by the evidence. Furthermore, the suit was maintainable under the proviso to Section 111A and was not barred by the limitation period of Section 104H.
Issues: (1) Whether the appellants were raiyats or tenure-holders; (2) Whether the suit fell within the purview of Section 104H or the proviso to Section 111A of the Bengal Tenancy Act; and (3) Whether the suit was barred by limitation.
Ratio Decidendi: Under the Code of Civil Procedure, a second appeal cannot be entertained on the ground of an erroneous finding of fact if the first appellate court had evidence proper for its consideration. The purpose of acquisition is the determining factor between a tenure and a rayati holding. Suits brought under the proviso to Section 111A of the Bengal Tenancy Act are governed by the general law of limitation.
Result: Appeal allowed, the decree of the High Court set aside, and the decree of the District Court restored.
Legal Category Hierarchy
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land law
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tenancy law
- occupancy raiyats
- tenure holders
- record of rights
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tenancy law
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practice and procedure
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civil procedure
- second appeal
- limitation law
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civil procedure
Judgement
Appeal (No. 11 of 1926) from a decree of the High Court (August 4, 1924) reversing a decree of the District Judge of Murshidabad (December 9, 1921) which reversed a decree of the Subordinate Judge of Murshidabad.
The suit was brought by the appellants on June 29, 1917, for declarations (a) that the company was an occupancy raiyat not a tenure-holder of Char Narainpur, and (b) that the entry in the record-of-rights prepared under the Bengal Tenancy Act, 1885, that the company was a tenure-holder of the lands was a nullity. The record-of-rights in question had been published in 1915, and the land in suit was about 800 bighas in area.
In addition to the respondent, who alone contested the suit, there were joined as defendants the zamindar and all persons claiming to hold as tenants of the land in suit.
The facts of the case and the issues framed appear from the judgment of the Judicial Committee.
The Subordinate Judge dismissed the suit. He was of opinion that the plaintiffs predecessors, the Menasakkans, had first acquired the land in 1841 under an ijara from Government as rent collectors, and that consequently, having regard to s. 5 of the Act, they were tenure-holders even if they cultivated the land themselves after the termination of the ijara. He held also that the suit was under s. 104H, and was consequently barred by sub-s. 2.
An appeal to the District Judge was allowed. He found that the Menasakkans had acquired and used the land for the purpose of cultivation before the ijara of 1841, and that they were occupancy tenants. He made a decree so declaring, but considered that he was precluded by authority from declaring that the entry in the record was a nullity.
Upon a second appeal to the High Court (Sanderson C.J. and Chotzner J.) the decree of the Subordinate Judge was restored. The learned Chief Justice, who delivered the judgment, was of opinion that the view that the Menasakkans had been in possession before 1841 was merely speculative, and that there was no evidence to displace the presumption that the entry in the record-of-rights was correct.
1929. June 20, 24, 25, 27. De Gruyther K.C, and E. B. Raikes for the appellants. Under the Code of Civil Procedure, 1908, ss. 100, 101, the District Judges finding that the plaintiffs were occupancy raiyats was binding upon the High Court Durga Choudhrain v. Jawahir Singh Choudhri . (( 1890) L. R. 17 I. A. 122, 127.) There was evidence to support the finding, more particularly the rubokaris included in the settlement record of 1880 made under Reg. VII. of 1822. The suit was maintainable under the proviso to s. 111A of the Bengal Tenancy Act, and was not barred ; s. 104H did not apply to it Promoda Nath Roy v. Asiruddin Mandal (( 1911) 15 Cal. W. N. 896.) ; Kumeda Prosunna Bhuiya v. Secretary of State . (( 1914) 19 Cal. W. N. 1017.)
Dunne K.C. and Kenworthy Brown for the respondent. Under s. 103B of the Bengal Tenancy Act, 1885, the entry in the record-of-rights was to be presumed to be correct. The onus of displacing that presumption was not discharged ; the evidence really supported the presumption. The finding of the District Judge was not binding in second appeal, as he gave no weight to the presumption under s. 103B, and there was no evidence whatever that the Menasakkans had cultivated the land before they became ijaradars. It was a question of construction whether the settlement record made under Reg.
VII. of 1822 showed that the plaintiffs were raiyats. The fact that in 1880 the plaintiffs were recorded as raiyats without any proof that there was then any dispute as to their status did not displace the presumption under s. 103B Secretary of State v. Gobind Prashad Barik . (( 1916) 2 Cal. W. N. 505.) Further, the suit was under s. 104H, sub-s. 3 (e), and was barred by s. 104H, sub-s. 2. The proviso to
s. 111A merely preserves the right to bring civil suits given by s. 104H. If the present suit is under s. 111A and not under s. 104H, sub-s. 3 (e), the latter
