Chakauri Lal vs Deo Chand Mahton and Others

Kulwant Sahay, J.—These are appeals by the plaintiff and arise out of suits in ejectment upon a declaration that the defendants are under-raiyats of the plaintiff who is an occupancy tenant of the land in dispute. The plaintiff served notice upon the defendants u/s 49, Ben. Ten. Act asking them to give up possession, but they have failed to vacate the land. The plaintiff therefore brought the present suits for recovery of possession. The defence was that the land in dispute was the gujasta kasht of the ancestors of the defendants and that the plaintiff was a tenure-holder and not an occupancy tenant. The defendants assert that they are not skimidars or under-raiyats of the plaintiff, and therefore are not liable to ejectment.

The Munsif found that the plaintiff was an occupancy tenant and the defendants were under-raiyats under him, and that the land in dispute was not the kasht gujasta of the defendants, and that the plaintiff was not the tenure-holder. It was further stated by the defendants, in their written statement that even as under-raiyats they had by custom acquired the rights of occupancy in the land. The learned Munsif in dealing with this point observed that no evidence had been adduced about such a custom and that the defendants had failed to prove that they had acquired occupancy right in the land in suit. He therefore made a decree in the plaintiff''s favour and awarded mesne profits to the extent of 2/3rds of what the plaintiff claimed.

On appeal by the defendants the learned District Judge has upheld the findings of the Munsif as regards the title of the plaintiff. He is of opinion that the Munsif was right in his findings regarding the status of the parties, namely, the status of the plaintiff being that of an occupancy tenant and that of the defendants being under-raiyats. The learned District Judge however has come to the conclusion that as under-raiyats, the defendants have acquired a right of occupancy in the land in dispute. With reference to the observation of the Munsif that no evidence had been produced to prove the custom set up by the defendants the learned Judge says that this is so and having regard to the nature of the case made by the defendants, namely, that they were occupancy tenants and not under-raiyats of the land in dispute, no such evidence could be expected on their behalf. The learned District Judge has however considered the fact that the defendants, who are nine in number, assert that they possess occupancy rights and he says that if the assertion of all these tenants regarding their possession of occupancy rights is accepted, then the usage in question, namely, the usage under which the under-riyats acquire the right of occupancy is established. He refers to the evidence of the defendants themselves to the effect that occupancy rights have accrued to them by virtue of their long possession and by virtue of the fact that some of them have planted trees upon the holding any by virtue of the fact that the plaintiff has bean in the habit of granting them printed receipts. These three facts are, in the opinion of the learned Judge, sufficient to establish a custom under which sikmi tenants or under-raiyats acquire the right of occupancy in a land. He refers further to the fact that the defendants and their ancestors have been in possession for periods varying from over 40 to 50 years and that the holding in question had been handed down from father to son. In my opinion the facts found by the learned District Judge are not sufficient in law to establish a custom of under-raiyats acquiring occupancy rights in the village. The nine cases referred to by the District Judge are cases in dispute and they by themselves cannot go to establish a custom. A custom must be established independently of and apart from the cases in dispute. Admittedly there is no other evidence in this case to prove such a custom; and, in my opinion, in the absence of such evidence the mere fact of the defendants having occupied the lands in dispute in the present cases for over 40 years and the fact of their having planted trees upon portions of the land and of their being granted printed receipts would not establish in law a custom, as set up by the defendants.

In my opinion the decision of the learned District Judge cannot be supported and must be set aside and the decree of the Munsif restored. These appeals are therefore allowed with costs here and in the Court below. Hearing fee in this Court will be assessed in each case at half the usual rate.