Gaya Prasad Sah and Others vs Ram Prasad Pathak and Others

Dhavle, J.—These appeals arise out of a suit for redemption of a bharna or usufructuary mortgage of brit rights executed in December 1896. Defendants 1 and 2 are sons of the original bharnadar, and defendants 3 to 5 are his grandsons, defendants 3 and 4 being sons of defendant 1. There was a partition in the family of the defendants of the original bharnadar, in accordance with which the bharna fell to the share of defendant 1 and his sons. Defendants 1, 3 and 4 are the appellants in Second Appeal No. 990, while defendant 2 is the appellant in Second Appeal No. 960 before me.

The former appeal is concerned with four plots numbered 2396, 2389, 2390 and 2597 at the Revisional Survey, while the latter is concerned with plots Nos. 2395, 2216, 2391 and 2392. Of these eight plots, two, namely Nos. 2389 and 2390, are raiyati plots, while the other six plots were shown in the Cadastral Record of Rights in the gairmazrua-am khata with houses and the possession of certain people noted in the remarks column. The appellants claimed to have acquired these eight plots, mostly by purchase.

In fact, the only exception is a part of plot No. 2395, which in the Cadastral Survey was numbered 2168, as to which their defence was that the plot had been abandoned by one Mangar Kunjra and thereupon settled by defendant 1 with defendant 2. The lower Appellate Court has held that the appellants, as representing the bharnadar, are entitled to compensation in respect of the two raiyati plots Nos. 2389 and 2390, but that as regards the other six plots with which I am concerned, they are not entitled either to keep the plots or to any compensation for them, because their purchases were purchases of an interest which is described as the interest of a licensee, or tenant-at-will, or as otherwise not binding upon the landlord.

The learned advocate for the appellants has raised two points before me: One relates to the raiyati plots Nos. 2389 and 2390. As I have already said, the lower Appellate Court has awarded to the appellants (defendants 1, 3 and 4) compensation in respect of these plots, having regard to the price that they paid for the purchase of these raiyati lands. The learned advocate has cited AIR 1932 199 (Privy Council) and contended that the plaintiffs mortgagors are not entitled to recover on redemption these lands included in the brit tenure as the mortgagee had acquired them for his own benefit and without availing himself of his position as mortgagee. It was however pointed out in Parmeshwar Rai v. Ramrudra Prasad Sinha A.I.R (1935) Pat. 360 that the decision in AIR 1932 199 (Privy Council) has no application to non-transferable raiyati lands.

Upon this the learned advocate has contended that all occupancy "holdings are transferable since the amendments of our Tenancy Act in 1934. Section 26-B, he has pointed out, provides that an occupancy raiyat shall have power to transfer "his occupancy holding, or any portion thereof, together with the right of occupancy therein, by sale, exchange, gift or will. But the Section goes on, to provide that except as provided in Sub-section (2), No. such transfer shall be valid against the landlord unless he has given, or is deemed Tinder Section 26-F to have given his consent thereto. On the face of it, this means that non-transferable holdings cannot be transferred and the transfer held valid against the landlord unless the landlord has given, or is deemed to have given, his consent thereto.

Reference has also been made to Section 26-0, Sub-section (1) which deals with transfers of occupancy holdings made after 1st January 1923 and before 10th June 1935, when the amendments came into force, and provides that the transferee may, in accordance with the provisions of Sub-section (1) of Section 26-E, pay to the landlord, or deposit with the Collector a certain fee. But it is obviously of little avail to the appellants that the transferee is empowered to pay the fee to the landlord or deposit it with the Collector: for they do not claim to have paid the fee at all.

The transfer of the raiyati lands in the present case was dated December 1931, and Sub-section (3) of Section 26-O provides that the consent of every person claiming an interest as landlord in the holding or portion transferred shall be deemed to have been given to the transfer if the landlord''s, transfer fee is paid in accordance with the provisions of Clause (b), Sub-section 1, Section 26-B, on such acceptance, or, if it is deposited with '' the Collector, in accordance with the provisions of Clause (c), Sub-section (1), Section 26-E, on the date on which the receipt for the same ]is granted by the Collector. Prom the time such consent is deemed to have been given, the transferee has a good title against the landlord. But it seems clear that under the Bihar Tenancy Act as amended, the transferee has no valid title as against the landlord until this is done. It is not pretended that in the present case the transferees did anything in the matter of the landlord''s fee so as to entitle them to the benefit of the provision that the consent of the land, lord shall be deemed to have been given to the transfer. The contention of the learned advocate that the appellants in Second Appeal No. 990 were entitled not merely to compensation for these raiyati lands as allowed by the lower Appellate Court, but were entitled to continue to hold them, must therefore be overruled.

The second and only other contention raised before me by the learned advocate relates to the other six plots. He has urged that compensation should have been given to the appellants--the three appellants in Second Appeal No. 990 in respect of two gharari plots and defendant 2, the sole appellant in Second Appeal No. 960, in respect of four gharari plots. It has been found by the lower Appellate Court that the interest of the persons whose names we find in the Record-of-Rights against these plots was the interest of a licensee or tenant-at-will. This was in accordance with the decision in Ramkishun Pande and Another Vs. Bibi Sohila and Others, and has not been challenged before me.

But the learned advocate has argued that even if the interest of the recorded persons was that of licensees or tenants-at-will, the landlord would not have been able to turn them out except by incurring the cost of civil suit. It is not pretended that a tenant, at will in particular requires so much as a notice to be given to terminate the so called tenancy, but stress is laid on the fact that in respect of his title, the landlord could not take the law into his own hands and that the action of the appellants in acquiring the gharari plots from the recorded persons has enabled the landlords to obtain quiet possession of the plots without the cost of civil suits. But if the landlord was entitled to get possession of these plots by bringing civil suits, the decrees in the civil suits would presumably have awarded to him the costs of the suits as well. "What the appellants took from the recorded persons was nothing at all as against the landlords, and I am not impressed by the contention of the learned advocate that there has been an accession to the mortgaged property by reason of the disappearance of the recorded persons from the plots in question--a disappearance which the appellants claim to have brought about by buying those persons out.

The landlords on redemption were entitled to the possession of these plots in their original condition. If that meant the houses of the recorded persons and the interest of those persons was no more than the interest of a licensee or a tenant-at-will, the landlord could have brought about the disappearance of these persons without any cost that he could not have obtained from the Civil Court: and it is from this point of view that I am not prepared to agree that there has been any real accession to the mortgaged property in respect of these six gharari plots.

The appeals both fail and must be dismissed with costs.