RADHA KRISHNA THAKURJI vs RAGHUNANDAN SINHA

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1934 Supreme(SC) 65

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD THANKERTON, AND SIR LANCELOT SANDERSON
RADHA KRISHNA THAKURJI - Appellant
Versus
RAGHUNANDAN SINHA - Respondents
On Appeal from the High Court at Patna.
Decided On : Dec. 20. 1934.

Important Points

The court affirmed the statutory presumption that land is not a proprietor's private land unless proven otherwise and ruled that statutory occupancy rights under the Tenancy Act cannot be restricted or waived by private contractual agreements.

Subject

Property Law - Land Tenancy

Act Referred

BENGAL TENANCY ACT: S.20, S.116, S.120, S.21

Headnote

(A) Bengal Tenancy Act, 1885 - Sections 5, 21, 116, 120 - Right of occupancy - Private lands of proprietor - Presumption against land being private land - Cultivation - Attempt to contract out of the Act - Under Section 120, the court must presume that land is not a proprietor's private land until the contrary is shown. Where land is held by a settled raiyat for the purpose of cultivation as defined in Section 5(2), a right of occupancy attaches under Section 21(1). Any clause in a lease agreement that attempts to restrict the statutory right to cultivate or the resulting occupancy rights is an attempt to contract out of the Act and is therefore ineffective.

(B) Record of Rights - Statutory presumption of correctness - Interpretation of local terms - Entries in the survey khatian and official glossaries are entitled to a statutory presumption of correctness. Where a term used in the Record of Rights is interpreted through official guides and reports to negate the claim that land is "ziraat" or private land, the burden remains on the party claiming such status to displace the statutory presumption.

Facts of the case:
The respondents brought a suit claiming occupancy rights over certain lands, alleging they had been illegally dispossessed by the appellants. The appellants contended that the lands were their private lands ("ziraat") and thus no right of occupancy could arise. The respondents had been in possession under a series of leases, the last being a nine-year lease for cultivation. The lands were entered in the survey khatian as "Proprietors bakasht".

Findings of Court:
The court found that the lands were let for the purpose of cultivation within the meaning of Section 5(2). Regarding the status of the land, the court held that the appellants failed to displace the statutory presumption under Section 120 that the land was not private land. The entry in the Record of Rights, supported by official glossaries and reports, indicated the land was not "ziraat" in the statutory sense.

Issues: Whether the lands in suit were the private lands of the proprietor under Section 116 of the Act, and whether the respondents held the land as raiyats for the purpose of cultivation under Section 5(2) to acquire occupancy rights under Section 21(1).

Ratio Decidendi: The court ruled that the statutory presumption under Section 120 that land is not private land must be displaced by clear evidence. Official survey records and glossaries serve as primary evidence to determine the status of the land. Additionally, statutory rights conferred by the Tenancy Act cannot be curtailed by private contractual agreements.

Result: Appeal dismissed with costs; decree of the High Court affirmed, subject to the exclusion of one specific plot.

Legal Category Hierarchy

Advocates:
Solicitors for appellants :Callingham, Ormond & Maddox. Solicitors for respondents: W. W. Box & Co.

Judgement

Appeal (No. 6 of 1932) from a decree of the High Court (November 18, 1929) reversing a decree of the Subordinate Judge of Darbhanga (January 26, 1927).

In 1925 the respondents brought a suit claiming that certain lands in Bihar, 101 bighas hi area, were lands in which they had acquired occupancy rights under the Bengal Tenancy Act, 1885, and that they had been illegally dispossessed by the appellants, their lessors; they prayed for possession and mesne profits. The defendants by their written statement pleaded that the lands in suit were their ziraat or proprietors private lands, and that no right of occupancy could arise therein. The plaintiffs-respondents, or their predecessors, had been in possession since before 1870 under a series of leases, the last being dated August 14, 1914, for a period of nine years at an annual rent of Rs. 520.

The Subordinate Judge dismissed the suit, but upon appeal to the High Court the learned judges (Wort and Ross JJ.) made a decree for possession and for mesne profits to be ascertained.

The facts of the case and the grounds of the decisions in India appear from the judgment of the Judicial Committee.

The Guide and Glossary of the Survey and Settlement Operations in the Patna and Bhagalpur Divisions officially published in 1907 and referred to in the judgment of the Judicial Committee and in the judgment of the High Court, contained (Part IV.) a glossary of terms used in connection with the Survey and Settlement Operations in Bihar. This included the following —

Vernacular. English. Remarks. Bakasht malik or In cultivating possession of the Entered in the status column of khatians in thicadar, etc. malik or thicadar. which details are recorded of those lands held directly by the malik or tenure holder which are not " zirat " (The Act has “ziraat” the second a represents an Arbic guttural not pronounced in India and often omitted in transliteration.-F. P.) land as denned in section 120. Zirat. (The Act Proprietors private land. Entered in the status column of khatians in has “ziraat” which details are recorded of lands found to be the second a "zirat, kamat, nij-jote, khamar, etc." within the represents an meaning of s. 120 of the Bengal Tenancy Act. Arbic guttural not pronounced in India and often omitted in transliteration.-

F. P.)

Kharour. Land producing thatching grass.

Reference was made also to p. 103 of the Final Report of the Operations in the Darbhanga District 1896 to 1903, officially published in 1926, with regard to the local usage of the term " zirat."

1934. Nov. 27, 30 ; Dec. 3, 4, 6. De Gruyther K.C. and Parikh for the appellants.

Sir Dawson Miller K.C. and Wallach for the respondents. The respective contentions appear from the judgment. Reference was made to the Bengal Tenancy Act, 1885, ss. 4, 5,19, 20,21,103B, 116,118,120 ; Chandra Kunwar v. Chaudhri Narpat Singh (( 1906) L. R. 34 I. A. 27.) ; Ajodhya Prosad v. Ram Golam Singh (( 1908) 13 Cal. W. N. 661.) ; Bhagtu Singh v. Raghunath Sahai (( 1908) 13 Cal. W. N. 135.) ; Dhakeshwar Prasad Narain Singh v. Gulab Kuer (( 1926) L. R. 53 I. A. 176, 185.) ; Hira Lal Singh v. Matukdhari Singh (( 1927) I. L. R. 7 P. 275.) ; and S. C. Mitras Land Law of Bengal ( 1898 ed.), PP- 319-326.

Dec. 20. The judgment of their Lordships was delivered by

LORD THANKERTON. This is an appeal from a decree of the High Court of Judicature at Patna dated November 18, 1929, which reversed a decree of the Subordinate Judge at Darbhanga dated January 26, 1927, and decreed the plaintiffs suit with costs.

The present suit was instituted by the respondents on April 30, 1925, against the appellants for ejection of the latter from an area of land in village Samartha amounting to about 101 bighas, on the ground that the respondents had acquired a right of occupancy in the lands in suit under the Bengal Tenancy Act

(VIII. of 1885), and the question in issue in the present appeal is whether they had such a right at the date of the suit.

It was conceded b