Masa Singh vs Tata Iron and Steel Co. Ltd.

K.B.N. Singh, J.—In this appeal the defendant is the appellant. It arises out of a suit for ejectment brought by the plaintiff-respondent for eviction of the appellant from 0.40 acre of land appertaining to survey plot: No. 2574 of Khata No. 188, situated in village Sakchi in the town of Jamshedpur.

The plaintiff''s case in short is that he had let out the suit land for homestead purposes to the defendant on a monthly rental of 8 annas 10 pies, which was payable annually by the defendant-appellant. The plaintiff served a notice u/s 106 of the Transfer of Property Act for vacating the suit premises, but the defendant did not vacate and hence the suit for eviction along with arrears of rent for the period from April, 1964, till December, 1955.

The defendant contested the suit and his defence is that the defendant was inducted on the suit land for agricultural purposes. He reclamed the suit land and made it fit for cultivation at heavy cost. The defendant also claims to have constructed a permanent agricultural house on a portion of the suit land. Then the defendant being in cultivating possession, for more than twelve years, has acquired right of occupancy under the Chotanagpur Tenancy Act and the Suit is not maintainable in the Civil Court u/s 139-A of the Chotanagpur Tenancy Act.

The trial court decreed the suit for eviction and arrears of rent and came to the finding that the suit land is Dihibari land and not agricultural land and the incidence of the tenancy would be governed by Transfer of Property Act and not Chotanagpur Tenancy Act. It also found that the notice u/s 106 of the Transfer of Property Act was validly served on the defendant.

On appeal by the defendant, the findings of the trial court were affirmed by the lower appellate court and it was held that the suit was maintainable in the Civil Court. The appeal was dismissed. Hence the Second Appeal.

The appellant also filed an application under Order XLI, Rule 27, of the CPC for taking as additional evidence a certified copy of an order of the Collector of Dhalbhum, Jamshedpur, under the Bihar Land Reforms Act in Revenue Miscellaneous Case No. 659 of 1965-66, which has been filed as Annexure ''A'' to the petition. The said order was passed on the 19th December, 1966, that is, after the disposal of the suit and the appeal in the court below, and is in respect of the lands in suit. In that case the State of Bihar, respondent M/S. Tisco Limited, Jamshedpur, and the present appellant Masa Singh were the parties. It was a proceeding under Sections 5, 6, and 7, read with Section 2-B of the Bihar Land Reforms Act. Mr. R.S. Chatterjee, on behalf of the appellant, has submitted that the aforesaid document, in the very nature of things, could not be produced by the appellant earlier and hence under Order XLI, Rule 27, Clause (b) of the Code of Civil Procedure, as amended by the High Court, this document should be taken as additional evidence in this case. Having heard learned Counsel for the parties, I find that the contention raised by Mr. Chatterjee is well founded and the document should be taken as additional evidence and marked Exhibit ''C'' in this case.

Mr. Chatterjee has submitted that the lower appellate court has erred in holding that Dihibari is not an agricultural lease. He has also submitted that once the tenancy is held to be for agricultural purposes, the Civil Court have no jurisdiction to maintain the suit. Developing the argument, learned Counsel submitted that in the instant case there was no written lease and there was nothing to show as to what was the purpose of the tenancy at its inception. The disputed land originally was a vacant piece of land and the defendant has been in possession for more than 25 years, paying rent annually and has an orchard and a house in it and was being used for agricultural purposes. Learned Counsel also submitted that the suit land was recorded in the Revisional Survey of 1934-35 as Dihibari Belagau in the name of the defendant. Learned Counsel made a grievance that the final court of facts has omitted to notice that the defendant had grown paddy in the suit land, a fact noticed by the trial court.

I am afraid, there is no substance in the aforesaid submissions made by the learned Counsel. The lower appellate court, on consideration of the entire oral and documentary evidence, has affirmed, the finding of the trial court and held that the tenancy in question was not an agricultural tenancy, but it was for non-agricultural purposes and a homestead holding. That, being a finding of fact, is binding on this Court in second appeal. This view is fully supported by a Bench decision of this Court in the case of Khusaram Bin v. The Tata Iron & Steel Co. Ltd. S.A. No. 139 of 1959 disposed of on the 12th Feb. 1965, which was also in respect of a Dihibari holding situated in the same village Sakchi. The judgment of the lower appellate court being one of affirmance, no grievance can be made if the final court of fact has not in the judgment also mentioned the fact of the defendant sometime growing paddy on a portion of the suit land. Admittedly, the defendant has constructed a house on a portion of the suit land and the fact of the defendant having sometime grown paddy will not change the character of the tenancy to that of an agricultural one. The nature of the tenancy will depend upon the purpose for which it was originally taken as laid down by a Bench decision of this Court in the case of Gurdit Singh Vs. Tata Iron and Steel Co. Ltd., .

Mr. Chatterjee next contended that on the basis of the additional evidence taken in this case, the State of Bihar, after vesting, as recognised the right to realise rent from the appellant under a proceeding under Sections 5, 6 and 7, read with Section 2-B of the Bihar Land Reforms Act, and as such, the respondent has no right to evict the appellant. This submission of the learned Counsel is equally untenable. Firstly, the proceeding seems to have been dropped, which means that no final decision has been taken affecting the rights of the parties. Secondly, the last but one paragraph of the aforesaid order (Ext. C) is significant and is in the following terms:

Under the circumstances, I hold that the State of Bihar is entitled for realisation of rent etc. for the land in question from the tenants who are found in peaceful possession over the land.

It seems that the proceeding was dropped as the State''s interest was not in jeopardy, as, it could realise rent from the tenant who might be found to be in peaceful possession of the land.

Learned Counsel next relied on a decision of the Supreme Court in the case of Ananga Bijoy Mittra v. Tata Iron & Steel Co. Ltd. 1963 B.L.J.R. 833 In that case the question was whether settlement of a piece of land in this very village, Sakchi, was taken for garden purposes or for agricultural purposes. There was no deed of lease in that case as in the instant case. An application for lease filed by the tenant was on the record, the relevant portion of which is quoted below:-

I beg to apply for a plot of land measuring 1267 sqr. ft. in Sakchi New Planning for Garden purpose and for permission to retain one step in the cast side.

I agree to hold the land on monthly tenancy and to abide by the terms and conditions of the Company and the house building rules, I also agree to abide by the rules and bye-laws of the Jamshedpur Notified Area Committee in force from time to time.

In that case the argument before the Supreme Court proceeded on the footing that as the purpose for which the land was being taken was garden purpose, so the tenant should be held to be an agricultural one. The Supreme Court negatived the aforesaid submission made by the appellant and held as follows:

It is difficult to conceive of a lease for cultivation being taken on a monthly tenancy. It is even more difficult to understand why Abdul Gani would agree ''to abide by the house building rules'' if the purpose was only to grow an orchard. These two facts, namely, that the land would be held on monthly tenancy and the tenant would abide by the house-building rules, have to be considered along with the earlier statement that the land was being applied ''for garden purpose''. The terms of the application for lease are, in our opinion, sufficient to show that the lease was not for an agricultural or horticultural purpose.

The aforesaid Supreme Court decision does not appear to be of any assistance to the learned Counsel for the appellant and from mere absence of lease or application for lease in the instant case, it cannot be argued, as was sought to be argued, that the tenancy in favour of the defendant appellant should be considered to be an agricultural tenancy. In a way the aforesaid decision goes counter to the submission made by the learned Council.

Mr. Chatterjee also submitted that the appellant has reclaimed the suit land and has thus acquired Korkar right in the land u/s 64, and u/s 67 of the Chotanagpur Tenancy Act, he will acquire right of occupancy in the suit land. The relevant portion of Section 64 is quoted below to appreciate the aforesaid submission of the learned Counsel:

64(1). Notwithstanding anything contained in any record of rights or any custom or usage to the contrary, every cultivator or landless labourer resident of a village or a contiguous village shall have the right to convert land in that village into Korkar with the permission of the Deputy Commissioner previously obtained:

Provided that no permission of the Deputy Commissioner shall be required under Sub-section (1) to the conversion of land into Korkar by a cultivator, where he was entitled on the date of the commencement of the Chotanagpur Tenancy (Amendment) Act, 1947, (Bihar Act 25 of 1947), by virtue of any entry in the record-of-rights or any local custom or usage to convert, such land into Korkar without the consent of the landlord.

One of the important ingredients for the application of the aforesaid provision is that the Korkar, if any, must be with the previous permission of the Deputy Commissioner. There is no such case or evidence in this case that reclamation, if any, was done with the previous permission of the Deputy Commissioner or based on any custom or local usage. No such point seems to have been taken in the courts below. Thus, there is no substance in this submission of the learned Counsel.

Learned Counsel next submitted that the estate having vested under the Bihar Land Reforms Act, the plaintiff-respondent had no right, title or interest left to maintain this action. Learned Counsel relied on the decision in the case of Suraj Ahir and Ors. v. Prithinath Singh and Ors. 1963 B.L.J.R. 1 (S.C.). In reply Mr. Lal Narayan Sinha has referred to Section 2-B, which has been incorporated in the Bihar Land Reforms Act by Section 2 of the Bihar Act II of 1961, inserting that provision with retrospective effect. There is no dispute that the land in question was acquired under the Land Acquisition Act of 1894 by the Government for the respondent and such acquired lands have been expressly exempted from the operation of the Bihar Land Reforms Act, except those which are in possession of a tenant, in which right of occupancy has been acquired before the commencement of the Land Reforms (Amendment) Act, 1960. As has been held above, no occupancy right in the disputed land has been acquired by the appellant and that being the position, the argument of the learned Counsel is wholly untenable and misconceived. Apart from that this point has not been taken in any of the courts below.

No other point was urged.

In the result, the appeal fails and is dismissed. In the circumstances of the case, there will be no order as to costs of this Court.

R.K. Choudhary, J.

I agree.