A settlement of a tank and embankment for the purpose of rearing and catching fish is a non-agricultural settlement and vests in the State of Bihar under Section 4(a) of the Bihar Land Reforms Act, 1950.

1. This second appeal by the plaintiff arises out of a suit for declaration of title and recovery of possession in respect of plot No. 321, a tank and No. 320 embankment of the tank of khata No. 118 in village Terga in the district of Dhanbad.

2. The case of the appellant briefly stated is that he took raiyati settlement of the tank and its embankment from the zamindar of Nowagarh by a sata Hukumnama dited the 9th January, 1948 on payment of salami of Rs. 700- and annual rent of Rs. 8/- besides cess. He came in possession of the property in dispute since the date of settlement by cutting earth, rearing and catching fish and by irrigating his fields from the water of the tank. He also paid rent to the landlord and obtained rent receipts. He continued in possession up to the year 1957 but in 1958 defendant No. 1 the State of Bihar through the Circle Officer, Baghmara dispossessed the appellant by settling the tank with one Mangan Modak. On the expiry of the term of the settlement of Mangan Modak defendant No. 1 settled the tank with other persons as well on temporary basis. According to the appellant as his landlord defendant No. 2 was not in possession of the property in dispute on the date of vesting it could not vest in defendant No. 1 under the Bihar Land Reforms Act.

3. The main defence of defendant No. 1 was that the property in dispute vested in it on and from 14th November, 1951. The appellant had not taken any raiyati settlement of the property in dispute on 9th of January, 1948 as alleged by him. It was only a got-up story to lend colour to his title. The claim of the appellant that he was in possession till 1957 was also challenged.

4. Both the courts below have dismissed the suit of the appellant. The trial court held that the appellant failed to prove his case of subsisting title to the land in dispute. It also held that the settlement with the appellant being for non-agricultural purpose he did not acquire the status of raiyat; therefore, whatever right he had in the property it vested in defendant No. 1, The lower appellate Court has held that the sada Hukumnama (Ext. 6) cannot be used to form the basis of settlement in respect of the property covered by it for want of registration. After considering the oral and other documentary evidence on the record it has further held that the appellant failed to prove that he was in possession over the tank by utilising its water for irrigation of any of his neighbouring land and that the dominant purpose of the settlement of the tank and its embankment was for rearing and catching fish, which was non-agricultural purpose and, therefore, the appellant was not a raiyat and his right vested in defendant No. 1 under the Bihar Land Reforms Act.

5. Mr. R.S. Chatterji appearing for the appellant has advanced three arguments in support of his appeal.

(i) The sada Hukumnama (Ext. 6) was admissible in evidence under Sec. 53-A of the Transfer of Property Act as well as for proving the nature and character of the appellants possession over the disputed property;

(ii) the settlement was a raiyati settlement and, therefore, the property settled with the appellant by the said sada Hukumnama did not vest in defendant No. 1 under the Bihar Land Reforms Act; and

(iii) even if the appellant had no title to the land he could not be dispossessed without an enquiry under Sec. 4 (h) of the Bihar Land Reforms Act and his dispossession being illegal he was entitled to recovery of possession.

6. It has not been and cannot be disputed that Ext. 6 being a sada document is not admissible in evidence to prove the title of the appellant over the disputed land. The appellant being the plaintiff is also not entitled to use it under Section 53-A of the Transfer of Property Act. It is well settled that Section 53-A is available only as a defence and cannot be invoked for enforcing rights under an unregistered lease. It has been so held by the Supreme Court in Delhi Motor Co. V/s. U.A. Basrurkar, AIR