Niranjan Chakravarti and Others vs Mukunda Mohan and Others

Agarwala, J.—The plaintiffs sued for a declaration that defendants 1 to 3 are mela-bhag tenants of the lands specified in Schedules 4 and 5 and that defendants 4 and 5 are mela-bhag tenants of lands described in Schedule 3. In the Record of Rights published in 1922 defendants 1 to 3 have been recorded as occupancy-raiyats in respect of Schedule 4 lands on a nakdi jama of Rs. 3 per annum. They have also been recorded as occupancy-raiyats in respect of the lands described in Schedule 5, while defendants 4 and 5 have been recorded as occupancy-raiyats in respect of the lands described in Schedule 3. The first Court found in favour of the plaintiffs, with respect to the lands described in Schedules 3 and 5. Defendants 1 to 3 appealed with respect to the Schedule 5 lands and the plaintiffs appealed with respect to the Schedule 4 lands. The appeal of defendants 1 to 3 was allowed, while the appeal of the plaintiffs was dismissed.

Second Appeal No. 783 of 1931 is directed against the decision with respect to Schedule 5 lands, and Second Appeal No. 784 of 1931 arises out of the decision relating to the Schedule 4 lands.

The contention of the learned advocate for the appellants is that the Court below has misconceived the legal position. The plaintiffs'' case is that their father purchased the disputed lands from one Dhananjoy who had purchased them from Mt. Alhadini, the former tenant of the lands. The plaintiffs'' title is based on a registered patta of 1906.

They further alleged that on 7th March 1907, the defendants executed in their favour an agreement with respect to the disputed lands for five years. The tenor of this agreement was that the defendants were to cultivate the lands and give the plaintiffs half the produce. The first question to be considered is the effect of this agreement. In the Manbhum District Gazetteer, from which district this case comes, it is said at p. 146 that:

Produce rents are not very common except in the case of small areas let out to the poorer class of cultivating labourers; not infrequently also the real tenant holds under his mortgagee on bhag, when he has got so involved as to be obliged to convert his simple mortgage into a usufructuary mortgage. Ordinarily, in the case of such bhag settlements, the produce is divided half and half, but where the landlord provides seed and cattle for ploughing, the tenant receives one-third only. In these cases the tenant is really a mere servant known as krishan ardhiar or aidhar and his third share of the crop represents his wages for cultivating his master''s land.

At p. 209 of the same volume it is said:

Of ordinary cultivating tenants the vast majority have either by law or by custom settled occupancy rights.... Practically the only classes of tenants who are not customarily treated as occupancy raiyats are those who hold on produce rent, and who are in fact rather servants than tenants.

In para. 71, p 38 of the final Report of the Survey and Settlement Operations in the District of Manbhum it is stated:

All over the district it is admitted that occupancy rights accrue by custom at once in all lands settled on cash rent. Settlement of land on produce rent confers no permanent right unless the tenant pays salami and takes settlement of hut bhag in which case also he acquires occupancy rights. The twelve years period recognized by law for the accrual of occupancy rights or the rights of a settled raiyat finds no customary recognition.... The custom governing the accrual of occupancy rights is the same as above in the case of under-raiyats or of korfas. Since 1920 however it has been held that Section 46, Chota Nagpur Tenancy Act prevents the accrual of permanent rights in the land in the case of all under-raiyats.

In para. 123 of the Report it is said that in adh-bhag or mela-bhag the produce is divided half and half. From these extracts from the Gazetteer and the Final Settlement Report it appears that ordinarily a person holding under a mela-bhag agreement is not an occupancy raiyat and cannot acquire occupancy rights. That also appears to be the view taken by the Calcutta High Court in three cases where a similar question arose. In the case of Brahmamoyee Barmani v. Mansur AIR 1920 Cal 548, the agreement between the parties is set out in the judgment of Newbould, J., at p. 37 of the Report.

There is no material difference between that agreement and the agreement in the present case. Mukherjee, Ag. C.J. and Fletcher, J., held that the document did not create a tenancy at all but was merely a profit sharing agreement. Similarly in Kade Mandal v. Ahadali Molla (1910) 6 IC 594, Jenkins, C.J. and Doss, J., held that a settlement with a burgadar under which he undertakes to cultivate the land for half share of the produce, the remaining half going to the owner, does not by itself create the relationship of landlord and tenant between the parties. In the case reported as Akshoy Kumar Pal v. Akshoy Kumar Banerjee 25 CWN 56, the defendant had executed a burga kabuliyat for a term of five years agreeing to cultivate the land and deliver half of the crops to the plaintiff and retain half for remuneration. Subsequently the defendant applied for commutation of rent u/s 40, Bengal Tenancy Act.

The commutation was allowed and in the khatian the defendant was entered as a settled raiyat and the rent payable was fixed at Rs. 22-8-0. The plaintiff then sued for a declaration that the commutation was ultra vires and for recovery of half the produce. It was held on a construction of the agreement between the parties, which was called a burga kabuliyat, that the defendant was a labourer there being no covenant for payment of rent, and that the commutation order was ultra vires and ineffective. In view of these decisions and the extracts above referred to I am of opinion that the defendants held under the plaintiffs and were not occupancy raiyats. Second Appeal No. 783 of 1931, which relates to the Schedule 5 lands, therefore succeeds and the decree of the lower Court with respect to these lands is set aside.

With respect to the Schedule 4 lands, which have been recorded as held on cash rent, another consideration arises. The defendants based their title on a patta executed by one Mt. Janki in 1891; but it has been urged by the learned advocate for the appellants that in view of the mela-bhag kabuliyat executed by the defendants in 1907 it is not open to the defendants to deny that they held under the plaintiffs. The kabuliyat was not denied but it was pleaded by the defendants that it was executed under coercion and undue influence and was never acted upon. No evidence appears to have been led with regard to the alleged coercion and undue influence. Section 116, Evidence Act, debars the defendants from pleading that at the time of the execution of the kabuliyat the plaintiffs had no title to the lands.

That in effect is the case which they had set up by pleading that they themselves held the lands by virtue of the patta of 1891. The lands in Schedule i were also included in the mela-bhag kabuliyat, and, in view of what has been said in dealing with Schedule 5 lands, it must be held that the position of the defendants with respect to Schedule 4 lands is the same as with respect to Schedule 5 lands. The result is that Second Appeal 784 of 1931 also succeeds and the decree of the lower Court with respect to the lands covered by this appeal is set aside. There has been no appearance on behalf of the respondents. The appellants are entitled to costs of the suit and the appeals in the Court below.