Lingo Bai vs Bansilal

Qamar Hasan, J.—The suit which has given rise to this reference was instituted in the Court of the Munsiff of Biloli against the appellant for declaration of right to have his name mutated in the revenue papers as a shikmidar. The case as set up in the plaint was that by a sale-deed dated 31st Amardad 1327F., the respondent had purchased the right, title and interest of the appellant''s husband along with the right of patta in Survey No. 551 situate in Biloli for Rs. 300/-. Since then, he had the possession of the suit plot till 22nd Ardibihist 1352F., the date of the institution of the suit. By reason of the possession for this length of time, which was ostensibly for more than twelve years, he claimed that he had become entitled to the right of shikmi.

The appellant ''inter alia'' raised the plea that the respondent was not in law entitled to the right.

The Court of first instance, after disposing of other issues against the appellant, held that as the respondent''s possession was referable to legal title, he could not claim adverse possession, and as such his suit was liable to dismissal.

The lower appellate Court differed from the trial Court and held that the respondent''s possession though based on a valid sale-deed would in a way be deemed to be adverse and having been in possession for more than twelve years, he would in law be deemed to have prescribed for the right of shikmi under the provisions of S. 67, Hyderabad Land Revenue Code (Qanoon-e-Malguzari-e-Arazi, Act 8 of 1317F.).

When the second appeal came up for hearing before the Division Bench consisting of Khaliluzzaman and M. A. Ansari JJ., it was contended on behalf of the appellant that S. 67, Hyderabad Land Revenue Code, did not apply to the present case and that the said section was applicable only to those cases where the person claiming the status of shikmidar began the cultivation of the land as asami shikmi with no stipulation as to the term of tenancy and continued to do so for more than twelve years. To support this contention, the appellant''s advocate placed reliance on the case of -- ''Kondapalli Rang Rao v. Dasa Veerayya'', 36 Deccan LR 909 (A). In that case, the occupants of the disputed lands had claimed a permanent right of occupancy on the sole ground that their possession extended over a period of more than twelve years. The appeal was heard by Hashim Ali J. and one of us. Hashim Ali J. held that the onus was upon the pattadar to prove that the person in possession entered upon the land in pursuance of a contract of tenancy for a fixed term. If the onus was not discharged the occupant would be deemed to have acquired the right of shikmidari under S. 67, Hyderabad Land Revenue Code.

In support of his conclusion, the learned Judge relied upon the Pull Bench case of -- ''Dhannappa v. Chinmallappa'', 14 Deccan LR 307 (B) and -- ''Rangrao v. Munnaji'', 15 Deccan LR 44 (C). On the other hand, the view of the other learned Judge relying on -- AIR 1924 65 (Privy Council) ; -- AIR 1929 156 (Privy Council) and -- ''Rachappa v. Devappa''. 27 Deccan LR 600 (F) was that the onus of proof lay in the first instance upon the party asserting that he had acquired, by long occupation or otherwise, a permanent tenancy or permanent right of occupancy in the land in dispute, and that unless the conditions laid down in S. 67, Hyderabad Land Revenue Code, were fulfilled, mere undisturbed possession for the statutory period would not establish the acquisition of permanent rights of occupancy. This difference of opinion caused the appeal to be laid before Abu Sayeed Mirza C. J. The learned Chief Justice, after discussing the authorities and the provisions of S. 67 concurred with the latter view.

The learned Judges who heard the present appeal however felt inclined towards the minority view and they referred the following question to us:

Where the plaintiff claims a right of shikmi on the ground that he had been in possession and occupation of the land in pursuance of a sale for more than twelve years and there was no other contract between him and the pattadar or the vendor, is such a person entitled to succeed in his claim.

The phrase ''Bayya pattadar se aur usse koi mohida na ho'' was circumscribed by the learned Judge by mention of the fact that there was a further stipulation between the parties to the sale in regard to the transfer and mutation of patta in the vendee''s name which despite repeated demands had remained unfulfilled.

In this context, therefore, the question referred to us has to be answered. The apparent tenor of the order of reference appears to be that the case adumbrated in the question fell within the ambit of S. 67, Hyderabad Land Revenue Code, as interpreted by Hashim Ali J. in the case of -- ''36 Deccan LR 909 (A)''. As has been already shown earlier, that view was based on the rule enunciated by the Full Bench in -- ''14 Deccan LR 307 (B)'', which was later followed in -- ''15 Deccan LR 44 (C)''. But unfortunately, it was not brought to the notice of Hashim Ali J. that the Pull Bench case on which he had based his conclusions was set aside on review, and the question was reheard and a contrary rule which fully'' coincided with the majority view in -- ''Dhannappa''s case (B)'' was laid down. The latter judgment of the Full Bench would be found reported in -- ''18 Deccan LR 101 (G)''.

Apart from the above authorities the provision of S. 67, Hyderabad Land Revenue Code, leads to the same conclusions. That section translated into English runs as follows:

If, in the absence of an agreement between the pattadar and asami shikmi pertaining to the period of possession, the asami shikmi has been in possession for a continuous period of twelve years, he shall be deemed to be a ''shikmidar'' and he shall acquire a right to hold the land permanently as against the pattadar. If any person has from the commencement of cultivation or from the time the patta was granted jointly with the pattadar cultivated the land, he shall be deemed to be a shikmidar until a decision to the contrary is obtained from a court of law.

The explanation appended to the section Is not material for purposes of this judgment. The expression "asami shikmi" before it was substituted by a new definition by S. 2 of Regulation 58 of 1355F., was defined in 3. 2(13) of the above Code to mean a person who was liable to pay rent to the qabiz i.e., the holder of the land. Rent is defined in S. 2(16) of the Code to mean

any consideration in money or kind or both, paid or payable by a shikmidar to his pattadar by an asami shikmi to the holder of the land on account of the use or occupation of the land held by him but shall not include the rendering of any personal service.

It would thus appear that the provisions of S. 67 read with the definition of "asami shikmi" and "rent" unmistakably show that in order to entitle a person to claim a right of shikmi, i.e., ''the right of permanent occupancy'', he must either be an "asami shikmi" liable to pay rent to the holder of the land with no stipulated term of tenancy his undisturbed possession having continued over a period of twelve years, or he must be a person who had cultivated the land jointly with the pattadar from the commencement of cultivation or from time when the patta was granted. In this view of the law, it seems impossible to lay down that a purchaser of the land from the pattadar can prescriptively acquire a right of permanent occupancy within the meaning of S. 67, Hyderabad Land Revenue Code. The reason is that the acquisition of right by means of prescription is a creature of statute and S. 67 does not provide for such a contingency.

The learned advocate for the respondent did not seriously contest that the case of the purchaser like the one mentioned in the question fell within the purview of S. 67. This would have concluded the matter for the formulation of our answer in the negative. But he strenuously urged that S. 67 was not exhaustive of the ways in which a right of shikmidar could be acquired. He could not substantiate his contention by reference to any of the provisions of the revenue Code. He merely relied upon the definition of shikmidar in S. 2(12) of the Code which states:

''Shikmidar'' means a person who has title (Haquikat) in the land like a pattadar or who from the beginning has been joint with the pattadar in the land (Arazi me sharik ho) or who before this Act came into force has acquired the right of shikmidari by virtue of any law for time being in force or shall hereafter acquire such right under this Act.

Stress is laid upon the opening sentence of the definition and it is argued that as the transfer of land passes forthwith to the vendee, all the interest which the vendor was capable of passing in the land and among the legal incidents thereof, the vendee would be deemed to have acquired title like the pattadar and irrespective of the fact whether he had prescribed for the statutory period or not, he would become a shikmidar.

This argument implies that the vendor when he sold the land along with the right of patta was not only a pattadar but a shikmidar as well. To our mind, having regard to the scheme of the Land Revenue Code a person cannot combine in himself both these capacities. These are two distinct conceptions with different rights and liabilities. Apart from that S. 2, Hyderabad Land Revenue Code, in which the definition of shikmidar occurs is an interpretation clause which is not to create rights but to declare that certain words and expressions used in the Code shall have the meaning given to them by the definition thereof.

In -- ''Umachurn Bag v. Ajadannissa Bibee'', 12 Cal 430 (H), it has been held that it must always be remembered that the effect of an interpretation clause is to give the meaning assigned by it to the word interpreted in all places of the Act in which the word occurs. In -- Official Liquidators Vs. Jugal Kishore and Others, Harries J. laid down that where terms are defined in an Act of Legislature, such terms must be given the meaning contained in the definition wherever the terms are used in a statute unless it is clear that they must be given some different meaning. Similar view would be found expressed in -- AIR 1928 325 (Lahore) ); -- Babu Parshottam Das Vs. Official Liquidator, Gorakhpur Electric Supply Co. Ltd., ; Hajipur Central Co-operative Union, Ltd. Vs. Kamla Prasad, and -- ''Walter John Brooks v. Nee Barwick'', AIR 1926 Bind 58 (FB) (M) relied on by the learned advocate for the respondent is best illustrated by the provisions of S. 59 of the Code. It deals with succession in case of death of a pattadar and provides that on the death of a pattadar of Khalsa land, the name of such person, who is legally entitled under a will and if there be no such person, the name of the nearest heir, and if there are several heirs of equal status, the name of the senior heir acknowledged as such by custom, shall be entered in the Register by the Talukdar and the names of the remaining heirs shall be entered as shikmidars. In such a case, no question of the acquisition of status of shikmidar by means of prescription could arise. The remaining heirs are registered as shikmidars because they are equally or in proportion to their'' shares entitled to the land like the pattadar.

The transfer of the land along with the patta makes the vendee a pattadar in law. His only right is to approach the competent authority to get himself recorded as pattadar. No period of limitation has been prescribed for approaching the revenue authority. If for any reason, he has failed to do so and is unable to do so, he cannot fall back upon the inferior right of being declared as shikmidar for the simple reason that he has acquired the right of patta and which is only available to him. No amount of prescription would bring his case under S. 67 or any other provision of the Hyderabad Land Revenue Code.

For these reasons, our answer to the question is in the negative. Let this opinion be remitted to the Division Bench.