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Judgment
Kulwant Sahay, J.—These appeals arise out of suits brought by the plaintiffs for a declaration that they are kastkars in respect of the lands in dispute in each case and that the defendants have got no right to bring the said lands in their khas possession on the strength of the decree alleged by them as proprietors of Naubarar or in any other way. There was a further prayer in the plaint to the effect that it may be held that the proceedings taken u/s 146 of the Crim. Pro. Code were improper, illegal, null and void, and inoperative and that the plaintiffs are entitled to maintain khas possession. The circumstances under which the suits were brought may be shortly stated as follows:--It appears that the lands in dispute are in Sheopur Diar. Originally there was a mahal known as Sheopur Diar Gangbarar which was temporarily settled estate. This temporarily settled estate was measured and it was found that there was a formation of new lands to the extent of 569 bighas. This new reformed land was made a new mahal with the name of Sheopur Diar Naubarar and a Government revenue of Rs. 1,102 was fixed for this mahal and it was settled with the proprietors of Sheopur Diar Gangbarar. This occurred in the District of Ballia in the United Provinces. Subsequently this mahal was transferred to Shahabad for revenue purposes. In 1903 the Naubarar mahal was put up for sale for arrears of Government revenue and was purchased by the Maharani of Dumraon. There was, however, a dispute between the Maharani and the original proprietors of Sheopur Diar who were known as the Sheopur Babus as regards possession and in 1911 a suit was brought by the present Maharaja of Dumraon for possession of the estate which had been purchased at the revenue sale. This suit was decreed by the first Court on the 22nd January, 1916, and possession was delivered to the Maharaja on the 23rd April, 1916. It is necessary to note that the 23rd April, 1916, corresponds to the 5th Baisakh 1323 F. At this time the plaintiffs in the present suit were in possession of the lands in dispute and they opposed the Maharaja in his efforts to take khas possession. The Maharaja in order to take khas possession of the lands which were held by the plaintiffs in the present suits granted amaldastaks to the contesting tenants-defendants in the present suits with the object that they should bring the lands into their possession and dispossess the plaintiffs. The amaldastaks have not been produced in these suits but it is stated that they were granted in Sawan 1323 F., and were for a period of one year only. As soon as these amaldastaks were granted a dispute cropped up between the tenant-defendants and the plaintiffs as regards possession of the disputed lands with the result that proceedings u/s 144 of the Crim. Pro. Code were instituted. In those proceedings it was found that the crops had not been sown by the tenant-defendants. Indeed the police reported that the first party who are the tenant-defendants in the present suits and the Maharaja had not sown the land and it was not expected that the first party on the strength of the amaldastaks from the Dumraon estate would go into such "den of lions" as the Sheopur Diar is, to take possession of the lands, and it is noticeable that the amaldastaks were granted in Sawan 1323 F., after the season for cultivation had commenced in Jeyth or Asarh 1323 F. The result was that the Magistrate made an order in the Section 144 proceedings on the 30th August, 1916, directing the defendants not to go on the lands in dispute. Against the order of the Magistrate the defendants came up to the High Court and the High Court was of opinion that having regard to the circumstances of the case the proper procedure to adopt was to initiate proceedings u/s 145 of the Crim. Pro. Code. Accordingly proceedings were initiated u/s 145 but the learned Magistrate was unable to come to a finding as to who was in actual possession and accordingly by an order dated the 30th April, 1917, the lands, were attached u/s 146 of the Crim. Pro. Code. It is to be noted that before the final order was passed attaching the lands u/s 146 the Magistrate on the 22nd February, 1917, had made an order of attachment before passing the final order.
The present suits were instituted in April, 1920, with the prayers set out above After written statements had been filed, the plaintiffs and the Maharaja of Dumraon, whom for the sake of convenience we may call the landlord-defendant in these suits, entered into a compromise, the effect of which was that the plaintiffs were granted by the landlord the lands in dispute in each of these suits with rights of occupancy therein at a rental of Rs. 7-2-6 per bigha. There were further stipulations as regards the landlord recovering the money which had been collected by the Magistrate during the period the lands were under attachment as representing the usufruct of the lands during the period of attachment. When the petitions of compromise were filed in these suits the tenant-defendants were not willing to let the matter rest there, and they showed their intention to contest the suits. The result was that although the matter was compromised between the plaintiffs and the landlord-defendant the suits were tried at the instance of the tenant-defendants.
The learned Subordinate Judge dismissed the suits on the finding that the plaintiffs had failed to prove any tenancy right in the land before the compromise entered into after the institution of the suits.
There were appeals to the learned District Judge against the decrees in each case made by the Subordinate Judge. The learned District Judge has decreed five of these suits and dismissed seven with the result that we have 12 appeals before us, 7 by the plaintiffs and and 5 by the tenant-defendants. The learned District Judge has dealt with each appeal in a separate judgment but having regard to the view that we take in the case all the 12 appeals may be disposed of by one judgment. It is to be noted that the suits were instituted after an order of attachment u/s 146 of the Criminal Procedure Code. u/s 146 the Magistrate if he decides that none of the parties was in possession or is unable to satisfy himself as to which of them was in possession of the subject in dispute may attach the lands in dispute until a competent Court has determined the rights of the parties thereto or the persons entitled to possession thereof. The provisions of Section 140 are different from the provisions of Sub-section (6) of Section 145 which provides that if the Magistrate decides that one of the parties was or should under the first proviso to Sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law. What is required of the plaintiff who comes to Court after an attachment of lands u/s 146 of the Criminal Procedure Code is to show to the Court that he has got rights in the lands in dispute and is entitled to possession thereof. Having regard to what has happened in the present suits it is unnecessary for the plaintiffs to prove any antecedent right in order to succeed. If during the pendency of the suits the landlord agreed to let the plaintiffs into possession of the disputed lands and confers rights upon them which would entitle them to retain possession of the land that would be quite sufficient to entitle the plaintiffs to a decree declaring their rights to the lands in dispute which would entitle them to get the properties released from attachment made by the Criminal Court. In the present cases the landlord-defendant has by agreement acknowledged the plaintiffs as occupancy tenants and has fixed a certain rent and therefore the title of the plaintiffs to the lands in dispute is complete. The contesting defendants who claim under amaldastaks granted by the landlord-defendant in Sawan 1323 F. do not deny the fact of the compromise or the fact that under the compromise the plaintiffs have acquired a valid title under the landlord. What they contend is that before the plaintiffs acquired this title they had already acquired title under the amaldastaks. Now no evidence has been adduced by the defendants that the amaldastaks were really intended to give them any tenancy right in the lands in dispute. The amaldastaks have not been produced and in their written statements they do not claim any higher right than the right to be on the lands for one year which right terminated in any event in Sawan 1323 F. which corresponds to July, 1917, much earlier than April, 1921, when the compromise was effected between the plaintiffs and the landlord-defendant. The plaintiffs in their plaint had stated that the amaldastaks were nominal and collusive documents and were granted on behalf of the landlord-defendant to his creatures and it was not a valid and operative document and did not confer any title on the tenant-defendants. The landlord-defendant in his written statement stated that under the amaldastaks the tenant-defendants entered into possession of the lands in dispute and brought them under cultivation and grew crops thereon but he does not say that any tenancy right was conferred on the tenant-defendants. The tenant-defendants in their written statements merely alleged that they took settlement of the lands from the Dumraon Estate under amaldastaks granted for one year and brought them under cultivation and grew crops thereon. Neither the landlord-defendant nor the tenant-defendants state what rights were conferred by the amaldastaks. The facts found in the present cases clearly show that the amaldastaks were never intended to be a real settlement conferring any tenancy right upon the tenant-defendants. Having regard to the fact that there is a total absence on the side of the tenant-defendants of anything to show that they have acquired any tenancy rights in the lands under the amaldastaks and to the fact that the plaintiffs have admittedly acquired occupancy rights under the compromise with the landlord-defendant, I am of opinion that the plaintiffs are entitled to a decree declaring their title as occupancy tenants of the lands in dispute. According to the defendants themselves the lands were sir zerait lands of the landlord and they adduced specific evidence on the point that the lands were sir zerait lands of the landlord and that they were let into them under the amaldastaks. It is a patent fact that in Baisak 1323 when possession was delivered to the landlord the plaintiffs opposed his taking khas possession. Having regard to the fact that the landlord was unable to take khas possession himself and sought the help of the tenant-defendants to grow crops, to the fact that as soon as they wanted to go on the lands there was a proceeding u/s 144 of the Criminal Procedure Code and an order was made against them and that this was followed by an order for attachment u/s 146 of the Criminal Procedure Code, it is clear that the tenant-defendants never as a matter of fact actually entered upon the land and therefore could secure no tenancy right whatsoever. They were merely agents of the landlord, employed by him to take possession on his behalf. In this view of the case the plaintiffs are entitled to succeed. I would therefore decree Appeals Nos. 1019, 1044, 1048, 1049, 1050, 1067 and 1092 which are the appeals by the plaintiffs to this Court and I would dismiss Appeals Nos. 1041, 1045, 1061, 1158 and 1221 which are the appeals of the tenant-defendants. The plaintiffs are entitled to their costs in this Court and in the Courts below.
Jwala Prasad, A.C.J.
I entirely agree with my learned brother. I would only add a few words. It appears to me that the Courts below have misconceived the scope of the suits and the defence set up. According to the plaintiffs the tenant-defendants to whom amaldastaks were granted had no separate existence. The lands were claimed by the Maharaja on the strength of dakhaldahani (delivery of possession) awarded to him in the title suit against the proprietors of Sheopur Diar on the 23rd April, 1916. His case was that the lands were previous to the delivery of the same to him in the khas possession of the proprietors of Sheopur Diar as their zerait and khudkasht lands and consequently he was entitled to khas possession of the lands in dispute. The plaintiffs claimed that the lands were not in the direct possession of the out-going proprietors and were in their possession as raiyats thereof and consequently the Maharaja of Dumraon on the strength of his delivery of possession from the Civil Court was not competent to dispossess them. According to the plaintiffs the tenant-defendants were simply creatures or agents employed by the Maharaja of Dumraon under cover of amaldastaks to recover for him possession of the properties by ousting the plaintiffs therefrom. This was the case expressly set up in para. 14 of the plaint and the relief is therefore directed against the Maharaja himself whose claim to khas possession was opposed upon the strength of the decree obtained by him. That relief is as follows: "It may be held that the plaintiffs are kastkars in respect of the lands in dispute, and that the defendants have got no right to bring the said lands in their khas possession on the strength of the decree alleged by them as a proprietor of Naubarar or in any other way. The plaintiffs never accepted the tenant-defendants as lessees of the property. They were simply supposed to be the weapons used by the Maharaja to dispossess the plaintiffs and the amaldastaks never conferred any right such as that of tenant or raiyat. This relief the plaintiffs according to their case obtained without the necessity of an adjudication by the Court by means of a compromise with the Maharaja in which he accepted the plaintiffs as his tenants with occupancy rights in the lands in question. Therefore the moment the compromise was effected the plaintiffs obtained what they sought in relief No. 1 quoted above. The right of occupancy conferred by the compromise was the only thing they then needed in order to get possession of the property from the hands of the Magistrate who had attached the lands u/s 146 of the Criminal Procedure Code. My learned brother has clearly given the meaning and scope of an order under that section and the time up to which the Magistrate can keep properties in his possession attached under that section and that time is in the words of the section "until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof." In the Criminal Court the parties to the Section 145 proceedings were the Maharaja as landlord, the plaintiffs claiming as kastkars and the tenant-defendants under the amaldastaks. These were the parties interested in the order made under Sections 144, 145 and 146 and these were the persons interested in having their rights determined by a competent Civil Court so as to recover khas possession of the properties from the hands of the Magistrate. These were the parties in the suits in the Civil Court brought by the plaintiffs. The plaintiffs set out their own right and title in the plaint as that of kastkars from before the decree and dakhaldahani of the Maharaja but their real claim was that they were occupancy tenants of the land. The Maharaja disclosed his case, and he claimed the lands as his sir zerait or bakasht which would entitle him to recover khas possession of the properties with the right to settle the same with anybody he pleased. The tenant-defendants in their written statements joined hands with the Maharaja and their statements are exactly the same as his on the crucial point; vide para. 12 of the written statement of the Maharaja and para. 5 of the written statement of the defendants in Suit No. 133. Now what are the rights claimed by the Maharaja and amaldastak holders in their written statements. Their claim is that the lands are sir zerait or bakasht of the proprietor and that the tenant-defendants took settlement of the same from the Dumraon Raj under amaldastaks for one year 1324 F. and brought them under cultivation and grew crops thereon. The Maharaja''s written statement is virtually the same though slightly changed in the wording in order to preserve to himself the right against the amaldastak people also and he simply says that the amaldastaks were given to the defendants and under the amaldastaks the said persons entered into possession of the lands. He does not even say that the lands were given to them as tenants. Now we can well understand the mind of the Maharaja Bahadur. He never cared to create any tenancy right. The plaintiffs challenged not only the bona fides of that; document but the rights created therein and their suits are entirely for the determination of the right of the contending parties who were before the Criminal Court in the Section 146 proceedings. The amaldastaks were the title-deeds. That would have shown what rights were held by the tenant-defendants. It is curious that there is a total absence in the written statements of the tenant-defendants of any claim to tenancy in the lands based upon their holding lands in the villages as settled raiyats. There is even an absence of claim of a raiyati interest in the lands in suit. They were bound to disclose their case and their rights. It is not open to them now to urge that they had rights of a different character or of a higher character. Under the rules of pleading pleas should be definitely taken and the facts constituting the pleas should be expressly stated. The plaintiffs'' case was liable to be attacked on several grounds, the most important of which was that the tenant-defendants had acquired a right of occupancy in the land or a raiyati interest. No such right has been claimed. The compromise was arrived at, at a late stage after written statements had been filed. The compromise does not at all alter the situation and does not entitle the defendants to change their case set out in their written statements. It was open to them before the written statements were filed. In the changed circumstances brought about by the compromise the plaintiffs were no doubt entitled to amend their plaint. The learned District Judge says that the admission of the proprietor''s right to settle the lands was without any prejudice, for the Maharaja would not like to have to declare that he had no right to settle the lands for that might prejudice him in connection with other cases in this or other dirars. The object of the plaintiffs was to obtain occupancy rights, they did obtain that and the fact of the Maharaja''s right to settle did not at all affect their case. The compromise therefore entitled them to amend their plaint but this the Court below refused and the reason given for refusal is not sufficient nor valid for under the new Code of Civil Procedure, Order 17, Rule 6, amendment may be allowed at any stage of the case and we have allowed amendments even in the appeal stage. In the altered circumstances of the present case amendment should have been allowed. Now when the plaintiffs and the tenant-defendants only were allowed to fight with each other we further think that the Courts below were wrong in not allowing the plaintiffs to bring the jinswar papers on the record and use them. However, these matters do not affect the case in the view that we have taken of it. In the evidence which I have scrutinised there is not a word or suggestion relating to any title except the amaldastaks. They expressly say that the lands in suit were sir zerait of the proprietor. Therefore if they had amaldastaks for a year their right to claim the lands as occupancy or non-occupancy raiyats is barred by Section 116 of the Bengal Tenancy Act. They held under a written lease and after expiry of the lease they were only trespassers, but in this case they could not get possession even, and before the ploughing season their dispute arose and in fact their amaldastaks came into existence after the ploughing season, and during the sowing season they were forbidden to go near the land and after that time at the time of harvest in Falgun 1324 F., the lands were attached. There was no occasion for them to make use of their amaldastaks. In the absence of the documents being produced the plaintiffs are entitled to say that the amaldastaks did not create any tenancy right but was an order or hookumnama to these people to go and take possession for considerations which would be shown upon them later on. Prom what I know of amaldastaks this is the only meaning. The consideration is in the future and their service return to the Raj is in taking possession of the land. Amaldastaks are not leases. For all these reasons I agree with the view of my learned brother. The decree will be in accordance with the terms of the compromise entered into between the plaintiffs and the Maharaja and against the tenant-defendants on contest declaring that the lands in suit are the occupancy holdings of the plaintiffs and that they are entitled to possession thereof and to have the attachment removed by the Magistrate u/s 146. On behalf of the Maharaja of Dumraon, defendant in these cases, the learned Vakil states that he has not contested the claim of the plaintiffs and no costs should be saddled upon him. No doubt at one stage he set up the tenant-defendants and now he has compromised the dispute with the plaintiffs. He has now no concern with the litigation between the plaintiffs and the defendants and there will be no costs against him.
Appeals Nos. 1019, 1044, 1048, 1049, 1050, 1067 and 1092 allowed.
Appeal Nos. 1041, 1045, 1061, 1158, and 1221 dismissed.