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PATNA HIGH COURT
Kanhaiya Singh, J.
Golap Gadi Goala
Versus
Rampariksha Rewani
Appeal From Appellate Decree No. 626 of 1953 ;
Decided On : SEPTEMBER 26, 1957
Chota Nagpur Tenancy Act, 1908 - Section 46 - Transfer of Occupancy Holding - Surrender and Resettlement - Legality - Circumvention of Statutory Prohibition.
Fact of the Case:
Ganesh Manjhi, an occupancy tenant, owed money to plaintiff 1. He agreed that if he failed to repay the loan by a certain date, he would surrender a portion of the suit land to the landlord, Dasmath, and cause it to be settled with plaintiff 1. Ganesh defaulted, and pursuant to the agreement, he surrendered the land to Dasmath, who in turn settled it with plaintiff 1. The plaintiffs alleged that this arrangement was made with the landlord's consent and that they were put into possession of the land. However, defendant 1 claimed title to the land based on a hukumnama showing a settlement with him by Ganesh. The plaintiffs asserted that the hukumnama was forged and that defendant 1 was never in possession of the land.
Finding of the Court:
The courts below found that the plaintiffs had acquired valid title to the disputed land by virtue of the settlement of Dasmath, but that they were not in possession. The court held that the surrender and resettlement were two independent acts and that the surrender was valid under Section 72 of the Chota Nagpur Tenancy Act. However, the court found that the entire arrangement, including the surrender and resettlement, was one whole agreement and that the landlord was a party to this arrangement. The court held that this arrangement was illegal and amounted to a circumvention of the statutory prohibition contained in Section 46 of the Act.
Issues: 1. Whether the surrender and resettlement of the disputed land was a valid transaction under the Chota Nagpur Tenancy Act, 1908? 2. Whether the plaintiffs had acquired valid title to the disputed land? 3. Whether the defendant 1 had acquired a valid title to the disputed land?
Ratio Decidendi: 1. The court held that the surrender and resettlement of the disputed land was not a valid transaction under the Chota Nagpur Tenancy Act, 1908, because it amounted to a circumvention of the statutory prohibition contained in Section 46 of the Act. Section 46 prohibits the transfer of an occupancy holding by a raiyat except in the manner laid down therein. The court held that the surrender and resettlement, though considered separately, may appear perfectly legal, but when taken together, they amounted to one transaction, the main object of which was to by-pass the statutory provision contained in Section 46. 2. The court held that the plaintiffs had not acquired valid title to the disputed land because the arrangement for the surrender and resettlement was illegal and could not be given effect to. 3. The court held that defendant 1 did not acquire a valid title to the disputed land because his possession was that of a trespasser. The plaintiffs were out of possession, and they could not recover possession unless they proved their title.
Final Decision: The appeal was allowed, the judgments and decrees of the Court below were set aside, and the suit was dismissed with costs throughout.
Kanhaiya Singh, J.
1. This is a second appeal by the defendant arising out of a suit for declaration of title and confirmation of possession or in the alternative, recovery of possession over 0.79 acre of land forming the western part of plot 1027 situate in village Kitadih. The facts of the case He in short compass. The disputed land along with other lands constituted occupancy holding of Bikram and Ganesh Manjhi who were full brothers and was recorded jointly in their names, but with a note of their separate possession over different plots in the Remarks column of the khatian (exhibit 6), since they were separate. Bikram was also the Pradhan (landlord) of the village.
On his death, his son Dasmath became the Pradhan. Ganesh owed Rs. 300 to plaintiff 1. He defaulted in rerpayment of the loan, but by mutal agreement between them expressed in a registered instrument dated 15-12-44, he was allowed time for payment of the loan by Magh of 1351 fasli. This agreement (exhibit 1) provided that if he failed to pay by the appointed day, he would surrender a portion of the plot in suit to the landlord, that is to say, to his nephew Dasmath, and cause it to be settled with plaintiff 1. Default occurred again, and the loan was not paid off by the appointed day.
Pursuant to the agreement he surrendered the disputed laud to Dasmath by means of a registered deed of surrender dated 28-3-45 (exhibit 4), and on the same day the landlord in his turn settled the disputed land with plaintiff 1 by a registered patta (exhibit 2). Plaintiff 1 obtained this patta benami in the name of his wife, plaintiff 2. The plaintiffs had to pay a premium of Rs. 400 for this settlement, out of which Rs. 300 was set off towards their debt due from Ganesh, and Rs. 100 was paid to the landlord Dasmath.
The plaintiffs alleged that the aforesaid arrangement was effected with the prior consent of the landlord and that the latter had agreed to settle the disputed land with plaintiff 1. The plaintiffs further alleged that they were put into possession of the land but on 12-8-48 there was interference with their possession by defendant 1 which resulted in a criminal proceeding under Section 447, Indian Penal Code. It, however, ended in acquittal of defendant 1.
In the criminal proceeding defendant 1 produced a hukumnama snowing settlement of the suit land with him by Ganesh on 19 Jeth 1943. The plaintiffs asserted that hukumnama was forged, and the settlement was a sham transaction and defendant 1 was never in possession of the suit land. Defendants 2 and 3 are the sons of defendant 4, the widow of Ganesh Majhi.
2. Defendant 1 alone contested the suit. Defendants 2 and 4 filed a written statement supporting him. His defence in the main was that the plaintiffs had neither title to nor possession over the disputed land and that he had acquired valid title by virtue of the said settlement.
3. Both the Courts accepted the plaintiffs version as correct and concurrently held that they had acquired valid title to the disputed land by virtue of the settlement of Dasmath, They were, however, of the opinion that the plaintiffs were not in possession and consequently they gave the plaintiffs a decree for possession of the suit land. Now, the defendants have come up in Second Appeal.
4. The facts appearing from the plaint and the facts found by the Courts below, about which there is now no longer any controversy are as follows. Ganesh Majhi and plaintiff 1 agreed by a registered instrument that in the event of default by Ganesh to repay his loan by Magh of 1351 fasli, he would surrender a portion of the plot in suit to the landlord, his nephew, and further cause it to be settled with plaintiff 1.
When the loan was not repaid by the appointed date, Ganesh pursuant to the aforesaid agreement surrendered the land to the landlord by a registered deed of surrender dated 28-3-45 (exhibit 4), and on the same day the landlord settled the same with plaintiff 1 by a registered patta (ex
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