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1926 Supreme(SC) 23
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD DARLING, SIR JOHN EDGE, MR. AMEER ALI. AND LORD SALVESEN.
RAJA DHAKESHWAR PRASAD NARAIN SINGH - Appellant
Versus
GULAB KUER (DEFENDANTS) - Respondents
On Appeal from the High Court of Judicature at Patna.
Decided On : May 10. 1926.
Solicitors for appellant: W. W. Box & Co.
Solicitors for respondents: Ranken Ford & Chester.
"Bakasht" lands are synonymous with proprietor's private lands (sir/ziraat). Survey entries recording such land are presumed correct unless proven otherwise. Rent assessment for equalizing allotments during partition does not establish a raiyati occupancy right.
Headnote:(A) Bengal Tenancy Act, 1885 - Sections 22(2), 116, and 120 - Estates Partition Act, 1897 - Section 3(xv) - Indian Limitation Act - Article 14, Schedule I - Nature of "bakasht" lands - Whether lands recorded as "bakasht" of a proprietor constitute proprietor's private lands (sir/ziraat) or raiyati occupancy lands - Presumption of correctness of survey entries - Assessment of rent for equalizing allotments during partition does not convert proprietor's private land into raiyati land - Suit for possession of allotted land is an action in ejectment and not barred by limitation as a challenge to revenue orders.
(B) Bengal Tenancy Act - Section 22(2) - Application of the section depends on the prior existence of an occupancy right; it cannot be used to establish such a right where the nature of the land is in dispute.
(C) Estates Partition Act - Section 3(xv) - Power of the partitioning officer to assess rent on land occupied by a proprietor for the purpose of equalizing allotments does not determine the legal character of the land as raiyati or private.
Facts of the case:
A suit was filed for possession of lands allotted during partition proceedings. The survey record of rights described the lands as "bakasht of malik" in the possession of a tenure-holder. The respondent claimed the lands were actually raiyati occupancy lands and that the survey entry was incorrect. The trial court ruled in favor of the plaintiff, but the High Court reversed this, holding the lands were raiyati kasht.
Findings of Court:
The court found that the term "bakasht" is synonymous with "khudkasht," "sir," or "ziraat," referring to the proprietor's private lands. The survey entry is presumed correct unless proven otherwise. The respondent failed to provide evidence of the land's raiyati character or the identity of any original raiyat.
Issues: Whether the entry in the record of rights recording the land as "bakasht" was correct, the legal interpretation of "bakasht" lands, and whether the suit was barred by limitation.
Ratio Decidendi: The court held that "bakasht" lands are generally proprietor's private lands. A survey entry under the Bengal Tenancy Act is presumed correct. The assessment of rent by a partitioning officer for equalizing allotments under the Estates Partition Act does not imply the land is raiyati. Furthermore, a suit for recovery of possession of land is an action in ejectment and not a suit to set aside a revenue order, thus not barred by the specific limitation period for revenue appeals.
Result: Appeal allowed.
Appeal (No. 98 of 1924) from a decree of the High Court (June 18, 1923) reversing a decree of the Second Subordinate Judge of Patna (May 26, 1920).
The appellant sued the respondents claiming khas possession of certain land, part of a village in Bihar, in respect of which there had been partition proceedings under the Estates Partition Act (V. of 1897, Ben.). The questions in the appeal were whether the defendants had a right of occupancy, and whether the suit was barred by limitation.
The facts are fully stated in the judgment of the Judicial Committee.
The trial judge made a decree in favour of the appellant. On appeal to the High Court (Kerr and Jwala Prasad JJ.) the suit was dismissed. The reasons of the learned judges appear from the present judgment.
1926. March 16. Dunne K.C., E. B. Raikes and K. Ali Afzal for the appellant.
Dube for the respondents.
May 10. The judgment of their Lordships was delivered by
MR. AMEER ALI. This is an appeal from a judgment and decree of the High Court of Patna pronounced on June 18, 1923, which, reversing the decree of the Subordinate Judge made on May 26, 1920, dismissed the plaintiffs suit.
The action is for the possession of some lands lying in a village, or, rather, in a conglomeration of villages and hamlets, called collectively Mauza Katauna, situated in pargana Bihar, district Patna. In this district proprietary rights are often split up amongst numbers of owners and frequently run into very small fractions. The present case furnishes not only an illustration of the infinity of sub-division, but also of the inconvenience to revenue officers in dealing with the shares. Until its partition in 1914, to which reference will be made particularly later on, Mauza Katauna bore one tauzi number (10905) and paid to the Government a consolidated jama (revenue) of Rs.1542. The mauza was held by a number of proprietors (maliks) in specific but undivided shares. Apparently when the partition was started there were some fourteen sets of co-sharers. The plaintiff owned a little over 4 annas or one-fourth ; whilst one Munshi Bakhori Lal, now deceased, the husband of the first defendant, held an anna and a fraction. Besides his proprietary or milkiat interest in the village, he owned a mukurrari, or permanent tenure, and some lands which were in his direct cultivation.
It should be observed here that besides Bakhori Lal, the other maliks also held possession, in proportion to their milkiat shares of the same class of lands which appear to have been called " minhai khudkasht "—" minhai," because the lands by private arrangement among the co-sharer-proprietors had been exempted from payment of rent, and " khudkasht," because they were the owners " private lands." The definition of the zamindars " private lands " in s. 120 of the Bengal Tenancy Act (VIII. of 1885) will be referred to later.
It is to these lands held by Bakhori Lal that the present dispute relates.
Long before the Government resolved to institute a survey and have a record of rights prepared under
Law Rep. 53 Ind. App. 176 ( 1925- 1926) Raja Dhakeshwar Prasad Narain Singh V. Gulab Kuer
73
chap. 10 of the Bengal Tenancy Act, preliminary to a partition among the several maliks, Bakhori Lal had parted with almost the whole of his proprietary rights and interests in the village. The fractional share he retained was held ijmali with the purchasers. To the sale-deeds their Lordships will refer later, as they throw considerable light on the question for determination in this appeal. This joint holding appears to have been maintained by the Batwara officer.
The survey settlement officer, on the conclusion of the record of rights, made an entry under s. 103 B, as follows (omitting the boundaries of the plots) —
SURVEY KHATIAN OF VILLAGE KATAUNA.
Village—Katauna Estate No. 307. - Mohamoodpur Bhaidi Mohanpur Bhaidi, Ugarsenpur Bhaidi, Rajpur Bhaidi, otherwise called Katauna. Name of proprietor and number in proprietary khewat - Babu Dhak
