Mt. Brihaspatia and Another vs Raj Kumar Singh and Another

Ross, J.—This was a suit for recovery of possession of 3 bighas 10 kathas of land being part of 92 bighas 6 kathas and 8 dhurs which the plaintiffs possessed, as has been found by the Courts below, as tenure-holders. This small plot of is 3� bighas was granted in ijara for a term of five years to Mt. Gulabo Kuer, defendant second party. The ijara was paid off and, when the plaintiffs sought to take possession, they were resisted by the defendants first party who claimed to be occupancy tenants and who were found by the trial Court to be non-occupancy tenants of this land by virtue of a settlement from the ijaradar. The learned Subordinate Judge, while affirming the decision that the plaintiffs were tenure-holders and not, as they claimed, occupancy raiyats, reversed the second part of the decision of the Munsif and held that by reason of an express prohibition in the ijara deed the defendant second party was not entitled to settle this land with a tenant and could not confer a title extending beyond the term of the ijara lease itself.

The learned advocate for the defendants first party, the appellants, referred to a decision of this Court in Sheo Balak Singh v. Radhey Singh [1919] 52 I.C. 501, and argued that it was within the power of the ijaradar to make settlement of this land unless there is ah express prohibition in his title-deed. He also referred to the terms of the ijara, and in particular to the clause upon which apparently the learned Subordinate Judge has relied, and argued that this did not contain any express prohibition against the settlement. The words are these:

So that the mortgagee being in possession of the mortgaged property may cultivate or get cultivated the land with due care and diligence and will enjoy the use and usufruct thereof; and the mortgagee will not allow any one to take possession of the land which is in my possession for a long time...and thereafter shall bring the mortgaged property under my own sir possession.

It is contended that the first part of these provisions distinctly contemplates settlement with others through whom the land has to be cultivated and that this may be done by tenants as well as by servants. The second provision is merely a provision against allowing title to be acquired against the mortgagee by adverse possession; and the third clause about sir possession is a common clause in such documents and does not mean that the mortgagor is to be restored to direct possession of the land.

The learned advocate for the respondants referred to Sheo Nandan Roy v. Ajodh Roy [1899] 26 Cal. 546, and other cases, as showing that the decision in Binad Lal Pakrashi v. Kalu Pramanik [1893] 20 Cal. 708, is an exception to the general rule which is that a grantee for a term of years cannot give a larger estate than he himself has.

This proposition cannot be disputed; and the question is, whether, in the circumstances of this case, the stipulation in the ijara deed amounted to a prohibition of settlement. While the ijaradar of a large property may well be entitled to bring tenants on the land in the ordinary course of management, it is to be considered that in the present case only a small plot of land measuring is 3 � bighas was in ijara and the defendants first party have been put into occupation of its entirety. It seems to me that having regard to the provisions of the deed itself, if any meaning is to be given to these provisions, this settlement cannot be held to be good. The first clause does not empower the ijaradar to make settlement, but merely to get the land cultivated.

Clause 2 cannot be restricted in its meaning as the learned Advocate for the appellants contends: it is a direct prohibition against allowing possession of the land to be given which had been in the possession of the mortgagor for a long time.

And Clause 3 about sir possession must be construed with reference to the subject-matter-- this small place of land; and, if it amounts to anything at all, it must mean that the land would come to the direct possession of the mortgagor when the term expires.

These clauses taken together, and read with the circumstances of the lease, seem to me clearly to amount to an express prohibition to settle the land in the way it has been settled; and it is useless to refer to the general powers of an ijaradar to settle in the ordinary course of management. Such a principle has no application to the present circumstances.

In my opinion the case has been rightly decided by the learned Subordinate Judge and the appeal must be dismissed with costs.

Kulwant Sahay, J.

I agree.