Bhairo Nath vs Shanke Pahan

Kulwant Sahay, J.—This is an appeal by the plaintiff and it arises out of a suit brought by him for recovery of (sic)ossession of one pawa of land known as Dabar Chaun Don in the village of (sic). The plaintiff is admittedly the (sic)dlord. The defendant claims to be a (sic)ant of the land. The plaintiff''s (sic)e was that the land was in his possesion as proprietor and he had let it out (sic)t first in bhugut bandha mortgage to one Durjodhan Manjhi and later in zer(sic)eshgi to Chaitan Munda. Mangra. Dondra Pahan and Jhirka Munda, The zerpeshgi was granted in 1895 and it was (sic)eemed in the Sambat year 1975. The plaintiff''s case is that after redeeming he zerpeshgi he wanted to take possesion but he was resisted by the defendant in respect of the land in dispute. The plaintiff says that this land was a part of the bakasht land and the defendant had no right to remain in possession. The defendant''s case was that it was not the bakasht land of the proprietor but it was his ancestral raiyati land.

He relied upon the entry in the survey khatian which showed the defendant as a raiyat in respect of the land in dim pute. Both the Courts below have held that the land in dispute was not the ancestral raiyati land of the defendant.

It has been found by the learned Subordinate Judge on appeal that the land in dispute was not manjihas land or the proprietor''s private land in which no rights of occupancy could be acquired but that it was land in the khas possession of the proprietor and appertained to the raiyati class of lands. The finding further is that the defendant was inducted as a tenant upon the land in dispute by the zerpeshgidars-during the period of the zerpeshgi. It is further found that the settlement by the zerpeshgidars with the defendant was not a collusive settlement but a bona fide settlement The learned Subordinate Judge has further found that the plaintiff''s evidence as regards possession and dispossession by the defendant was hopelessly conflicting and the learned Subordinate Judge agreed with the Munsif in holding that the defendant had been in possession at least from the date of the survey settlement which was more than 12 years before the institution of the suit.

The position therefore is that the defendant was inducted upon the land by the zerpeshgidars who had taken the land in zerpeshgi from the plaintiff for a period of time and the said period having expired and the zerpeshgi having been redeemed, the question is, whether the plaintiff is entitled to take possession of the land in the condition in which he had granted the same in zerpeshgi to the zerpeshgidars on ejecting the defendant. The learned Subordinate Judge has found that the zerpeshgidars were in the same position as lessees; that lessees are entitled in the ordinary course of management to induct tenants upon raiyati lands; and that such settlement of land by the zerpeshgidars would be binding upon the proprietor or the person who had granted the zerpeshgi He relied upon the observations of this Court in Sheo Barat Singh v. Padarath Mahton (1919) 52 I.C. 473 and Pitambar Singh v. Khago Kumhar (1917) 3 Pat L.W. 333-39 I.C. 521 These two cases support the decision come to by the learned Subordinate Judge.

It has, however, been argued on behalf of the plaintiff in second appeal that the zerpeshgidar had no right to settle tenants upon the lands which were in the Possession of the plaintiff at the time when the zerpeshgis were granted. In my opinion there is no substance in this contention unless there is a restriction in the zerpeshgi lease itself restricting the power of the zerpeshgidar as regards the settlement of raiyati lands, the zerpeshgidar in the ordinary course of management would be entitled to settle raiyati lands with tenants. The cases cited by the learned vakil for the appellant refer to zirat lands or lands which were private lands of the proprietor and to which no right of occupancy could be acquired. Those cases are different from the raiyati lands which are temporarily in possession of the landlord and which are known technically as bakasht lands. Such lands are primarily raiyati lands bat are held by the proprietor for the time being on account of surrender or abandonment or purchase in execution of decrees or by such other means. Such lands retain the character of raiyati lands and occupancy right is acquired as soon as such lands are settled with settled raiyats of the village.

In any case here the finding is that the defendant has been in possession for more than 12 years and has therefore acquired an occupancy right having regard to the finding arrived at it is clear that the plaintiff is not entitled to eject the defendant. His argument is that the zerpeshgidars had no right to create encumbrance or commit acts of waste in respect of the land given to them in zerpeshgi. If the zerpeshgidars have done any such thing the remedy of the plaintiff would he against them. "As against the tenant who is the only defendant in the present suit no such claim can he raised and the settlement with him which has been found to be a bona fide settlement cannot be held to be invalid on account of any act done by the zerpeshgider to the detriment of the plaintiff. I am of decision that the decision of the learned Subordinate Judge is correct and this appeal must therefore, be dismissed with costs.

Adami, J.

I agree.