Bhairo Singh and Others vs Rai Shamsundar Prasad and Others

Madan, J.—This is an appeal by the plaintiffs, Bhairo Singh and others, who brought a suit for a declaration that 62 bighas 12 kathas and 12 dhurs of lands situated in village Pahsara are their raiyati holding on a rental of Rs. 26-14-0 including case. The plaintiffs'' case was that originally the lands formed part of an area of 92 bighas odd which was the occupancy holding of the ancestors of themselves and defendants second party who is their near agnate. By a registered partition deed of the year 1885 the plaintiffs or their predecessors in interest were allotted the land in suit and the rest of the holding was allotted to the defendants second party. The land was shamilat of four touzis in two of which, Nos. 1070 and 1071, the plaintiffs have a proprietary share. The plaintiffs'' case is that they acquired their shares in both touzis after they had acquired their raiyati interest. In the cadastral survey, finally published in the year 1902, the suit land was recorded as bakasht in possession of the plaintiffs as on sharer landlords on payment of compensation to the remaining landlords. The rest of the occupancy holding was recorded as raiyati of defendant, second party in khata No. 1651 on a rental of Rs. 39-1-1� which was joint with that of the suit land.

According to the plaintiffs, the survey entry was incorrect, and the suit lands should also have been recorded as their raiyati land on payment of the proportionate rental of Rs. 26-14-0 as entered in the partition deed. Subsequently there was a collectorate partition of the mahal and the plaintiffs claimed the suit lands as their raiyati, but instead they were assessed as ordinary baksht lands on an estimated rental of Rs. 7 per bigha.

The plaintiffs brought the suit for a declaration that they were entitled to continue to hold the suit lands as an occupancy holding on a rental of Rs. 26-14-0 or for such other relief as the Court might find to be proper. The plaintiffs impleaded the landlords of the four tauzis under which the lands were recorded as the defendants first party in the suit. Written statements were filed by various members of the defendants first party to the effect that the lands were bakasht lands of the proprietors and were rightly assessed in the partition. They also pleaded that the suit was barred by limitation.

The Additional Subordinate Judge by whom the suit was tried held that the plaintiffs had acquired their interest in tauzi No. 1070 in the year 1836 which was after the partition deed, but that they had not proved when they acquired their interest in tauzi No. 1071 whether before or after they come in possession of the suit lands. He therefore held that the lands were correctly recorded in the cadastral survey as bakasht lands held by the plaintiffs on payment of compensation to their cosharers, and dismissed the suit on ''the ground that the plaintiffs were not entitled to a declaration of their occupany right. The District Judge upheld this decision on first appeal.

The first question that arises before us is whether the appeal is concluded by findings of fact arrived at by the District Judge. The plaintiffs filed certain manuscript rent receipts, as well as three rent decrees, covering the period 1862 to 1892 which was prior to the cadastral survey. These documents which contain varying areas and rentals relate to lands situated in attract known as Bad Nousajha in which the suit lands lie. It appears that formerly the whole of this tract was in lease to the Manjhoul Factory of which defendant 105 of the defendants first party is the Manager, and it was suggested in the written statement of that defendant that the suit lands were bakasht lands of the factory, different portions of which were settled from year to year with the plaintiffs when not required for the growing of indigo.

The learned District Judge observed that these documents did afford an indication that the lands in suit were really bakasht lands and not portions of an occupancy holding, for which reason the onus lay the more heavily on the plaintiffs to establish their case that they acquired their interest in the two tauzis after they got possession of the suit lands, and he agreed with the trial Court that the plaintiffs had failed to discharge that onus. The District Judge did not however base his decisions on these documents, and had he intended to arrive at a definite finding on the point he could not have failed to take into consideration the partition deed (Ex. 1) of the year 1885, in which an occupancy holding of 92 bighas is mentioned, as well as rent receipts filed toy the plaintiffs relating to the period after the survey and supporting their case. On the other hand the receipts and decrees dating from before the survey are very old and there is nothing in them to show to what particular land they refer. The learned Judge must also have considered the presumption attaching to the survey entry recording the lands as held by the plaintiffs on payment of compensation to their cushier landlords and as having formed part of an occupancy holding with a total area approximating to that given in the partition deed.

There is also the fact that the lands were treated as so recorded u/s 22(2), Ben. Ten. Act, throughout the Collectorate partition. In the absence of any reference to these necessary points, I am unable to hold that the learned Judge''s observation on this portion of the case amounts to a finding of fact binding on us in second appeal. In fact neither of the lower Courts came to a definite finding regarding the survey entry, being content to dismiss the suit on the ground that the plaintiffs had failed to prove their occupancy right. In my opinion the evidence admits of no other conclusion but that the lands in suit were originally raiyati lands which were being held by the plaintiffs on payment of compensation to their cosharer u/s 22, Tenancy Act. The plaintiff''s claim to be occupancy raiyats was therefore rightly dismissed.

The question now arises whether any relief can be granted in this suit to the appellants if it is found that they had acquired a right to hold lands u/s 22(2), Ben. Ten. Act. In the partition case the Divisional Commissioner Mr. (now His Excellency Sir John) Hubback held that lands in possession of a cosharer proprietor u/s 22 required to be distinguished from ordinary bakasht lands taken under cultivation by a cosharer and not subject to any fixed rent.

The order of the Hon''ble Board containing the relevant extract from the Commissioner''s order is on the record of this case, and runs as follows:

It would in my opinion be most unfair to value the lands recorded in the way described above at the ordinary bakasht rates. The cosharer in possession has bought out the occupancy raiyats, and has obtained the right to hold the land against his other cosharers on payment of the sum previously paid as rent. This was in fact the situation before 1907 and the amendment of that year in this respect only clarified the law. If such land is ultimately awarded to the patti of the cosharer now in possession of it, and it is valued at the full bakasht rate, he will lose the difference between that rate and the rate at which he has hitherto been paying "compensation" to his cosharers. Again, if it falls in another patti, the cosharer in possession will be entitled to hold it on payment of that "compensation", and the new sole proprietor of the patti will lose the difference between that and the full bakasht late. I direct therefore that the raibandl be revised throughout by substituting in the case of all such lands the recorded "lagan" (it is not strictly "rent") for the bakasht valuation, but adding thereto the amount which the cosharer in possession would pay to himself....

In revision against this order, the Hon''ble Board pointed out that in Section 45 read with Section 3(xv), Partition Act, assets When used with reference to land are denned as (a) in the case of land, held by cultivating raiyats "the rent payable by them" and (b) in the case of land which his occupied by a proprietor "the rent which might reasonably be expected to be payable by cultivating raiyats if the land were occupied by them". The Board held that lands held u/s 22, not being an occupancy holding, were bound to be treated by the partition officer as bakasht.

Dealing with the Commissioner''s view that this procedure would be unfair to the proprietor in possession, the Board observed that the compensation payable by such proprietor was different from rent as defined in the Tenancy Act; it also referred to an observation of the Judicial Committee in Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy A.I.R.1924. P.C. 144 to the effect that a purchase by a cosharer landlord was a purchase for the benefit of all the cosharers and that the occupancy rights so purchased would thereby be extinguished. The Board there, fore held that a right u/s 22 was a temporary right remaining in force only for so long as the estate remained undivided, and that on partition the holding passed into the has possession of the proprietor in whose patti it might happen to be included.

This view is opposed to that taken by this Court in Jhapsi Sahu v. Mt. Bibi Aliman A.I.R.1926. Pat. 263 and in other cases. In (Babui) Dhaneshwari Kuar Vs. Chandradhari Singh and Another, which is one of these cases, their Lordships, with reference to the Privy Council decision cited above, observed that the general observation of their Lordships of the Judicial Committee in that case must be read subject to the provisions of Section 22(2), Ben. Ten. Act. They held on the strength of previous decisions of this Court that Section 22(2) does entitle a co-proprietor to hold raiyati lands, purchased by him subject to the conditions mentioned in that clause, after he has ceased to be a co-proprietor by means of partition.

They further held that it was only so long as there are others interested in the land as co-proprietors that it was necessary to deal specially with the purchasing cosharers'' right to hold the land, and that the partition does not put an end to that right to make a present of it to the co-proprietors who purchasing nothing. It was held that what was really available for the partition was not the land itself, but the rent that would have been paid for the land by the occupancy raiyats whose place was taken by the purchasing co-proprietor subject to the payment of a proportionate share of the rent to the other co-porprietors. This rent would have to be taken into account in the partition and not the land purchased by the co-proprietor.

I venture to think that the view expressed in this Court is in consonance with both law and equity, and I am informed that the Hon''ble Board of Revenue has since issued a circular, accepting the ruling of this Court in Jhapsi Sahu v. Mt. Bibi Aliman A.I.R.1926. Pat. 263 cited above, and directing that it should be followed in future by all partition officers. It is not however open to us to grant any relief to the plaintiffs in the present suit. There is ample authority that this Court cannot set aside or alter a partition which has been effected by a Court of competent jurisdiction, and it cannot be said that the Revenue Court was acting without jurisdiction merely because in this case, and regarding a matter for which there is no special provision in the Partition Act, it adopted a view which cannot be said to have been unreasonable, although contrary to the view taken by this Court and subsequently adopted by the Revenue Court itself. Besides, the plaintiffs as cosharer landlords of the village which has been partitioned were parties to the partition proceedings, and they have been allotted their due shares of the assets of the mahal which were fixed in their presence. They now ask for a declaration that the lands in suit are their occupancy cot and in the alternative that they have the peculiar right in them which is denned u/s 22(2), Ben. Ten. Act, and for a decree directing that Rs. 26-14-0 which was pay-able by them before the partition may be entered in the batwara papers as the may of the disputed lands. To give a decree to the plaintiff in these terms will involve the re-adjustment of the assets not only so far as the plaintiffs are concerned, but also so far as the other cosharer landlords are concerned. Such an order is dearly beyond the jurisdiction of this Court. As to the prayer for the declaration that the plaintiffs have a right under, Section 22(2) in the lands in suit, though I am inclined to think that such a declaration might have been given to the plaintiffs if it was possible to grant some consequential relief to them, yet in view of the provisions of Section 42, Specific Belief Act, and the settled practice of this Court not to pass any declaratory decree when that decree can be of no avail to the party seeking it, I have reluctantly come to the conclusion that the plaintiffs'' suit will have to be dismissed.

I may however observe that the present case is a very hard one inasmuch as the effect of the partition is that the plaintiffs will be deprived of the lands of which they would have been regarded as occupancy tenants but for the fact that they hold a negligibly small share in one of the tauzis of the village which has been partitioned. It is however a matter for the revenue authorities to decide whether the partition should be re. opened in order to relieve the plaintiffs of this apparent hardship under any provision of the revenue law. The plaintiffs'' appeal to this Court must be dismissed, but in the circumstances of the case I would order that the parties bear their own costs throughout.

Fazl Ali, J.

I agree.