Adikanda Sahu and Others vs Banchhu Malik

Courtney-Terrell, C.J.—This is a second appeal against the decision of the Subordinate Judge reversing the decision of the Munsif of Jaipur in a suit for recovery of possession of land described in the schedule to the plaint and a sum for mesne profits.

The defence of the defendant was that he had rights of occupancy in the land. The record-of-rights published on the 10th July 1928 recorded the land in question as waste land and under the column which headed the name of the tenant, the defendant is recorded as having been in possession since 1923 as bebandobasti Nayabadi, that is to say without settlement of newly reclaimed land.

Now Section 61 of the Orissa Tenancy Act forbids the reclaiming of waste land by a raiyat without the written consent of the landlord, and by Sub-section 2 if the landlord does not within four years from the date when the raiyat commenced his reclamation, make an application to the Collector for his ejectment, the consent of the landlord is to be deemed to have been given.

It is contended on behalf of the appellant, the landlord, that there is a conflict between the presumption created by the second sub-section to Section 61 and the presumption to be derived from the entry in the records-of-rights and that the entry in the record-of-rights should prevail. In my opinion there is no conflict between the two. The word ''bebandobasti'' that is to say without settlement, merely means that the landlord did not conclude any arrangement with the tenant when inducting him upon the land. It is quite consistent with the presumption of consent to the reclamation imposed by Section 61. It is admitted that the tenant respondent is a settled raiyat of the village and in these circumstances the consent of the landlord to the reclamation being presumed, notwithstanding that there has been no specific bebandobasti between the landlord and the tenant, the tenant cannot be ejected because he has acquired occupancy rights in the land which he has reclaimed with the implied consent of the landlord.

For this reason, in my opinion, the decision of the Subordinate Judge dismissing the suit was right and this appeal must be dismissed with costs.