Rasool Uddin vs Udham Singh

A.H. Khan, J.—The facts giving rise to this second appeal in short are that the Plaintiffs filed a suit against the Defendants in the court of the Civil Judge, First Class, Vidisha, on the allegations that their mother during their minority gave the disputed fields to the Defendants on "Batai" for three years. This agreement was reduced to writing in the form of Patta and Kabuliyat. The Plaintiff had got the land ploughed with a tractor and the terms of the Batai were that from the produce after deducting the expenses, the profit shall be distributed fifty-fifty between the parties. It was said in the paint that the Defendants with the collusion of the Patwari got their names entered as Pukka-Krishaks. The Defendants admitted that they were "Bataidars" but claimed that they became Pakka Krishaks on the abolition of the Zamindari. After recording the evidence of the parties, the trial Court found that the Defendants were Bataidars (and not tenants) and as such they could not acquire the status of a Pakka Krishak. It decreed the Plaintiff's suit.

On appeal, the learned Additional District Judge, Vidisha reversed the finding of the trial Court and held that the Defendants were tenants and have been rightly recorded as Pakka Krishaks. This is Plaintiff's second appeal.

After going through the record and the judgment of the learned first appellate Court, I find that a lot of confusion prevails in this case. Much of the judgment proceeds on grounds that need not have been considered. The learned Additional District Judge has taken the trouble to find out whether the land in dispute was Khudkasht or not. But he overlooked the simple fact that in the Patta and Kabuliyat, which are the basis of the suit; the land has been admitted by the Defendants to be Khudkasht. Thus the energy of the learned District Judge in trying to record a finding on the point was merely Wasted.

The real question in this case is of the interpretation of the term "tenant" and the "Bataidar". Again on this point while considering the question of Khudkasht and in referring to Section 2 (40) of the Gwalior Quanoon Mal, the learned Additional District Judge has said that the Plaintiff had never got this land cultivated by his servants or by his partner. But surprisingly enough, the learned Judge has overlooked these two documents (Patta and Kabuliyat) which are undoubtedly an agreement, evidencing partnership. The learned Judge has also failed to interpret the words "Batai" or "Bataidar". I am happily relieved of the necessity of defining these words because my learned brother Dixit J." (as he then was) in 1961 Revenue Nirnaya page 313 (Nihalkaran v. Amarsingh) has very ably(sic) pointed out the difference between a "tenant" and "Bataidar". I can do no better than quote his words-

A person can be said to be a "tenant" if he holds land for agricultural purposes and if he is liable to pay renter if he would, but for a contract, be liable to pay rent for his holding. "Bataidar" is clearly not a person under any obligation to pay rent. The words "Batai" and "Bataidar" have been derived from the word "Bat". Now "Bat" means a partition, a division or a share. "Batai" denotes a division of the crop between the cultivator and the landlord or the Government. "Bataidar" is thus a cultivator who shares the crop or the produce with the proprietor, there is thus no question of payment of any rent by a "Bataidar" to a proprietor Likewise the word "tenant" has no reference whatsoever to the sharing of produce. Tenancy implies the creation of a subordinate interest while a "Bataidar" cultivates the land for the benefit of the proprietor on certain considerations.

I find myself Complete accord with the view taken by my learned brother. In this view of the matter, having regard to the two documents (Patta and Kabuliayat) there is not the slighrest(sic) doubt that the Defendant's were the Bataidars and not tenants. It being so, the Bataidars (Defendants) can not become Pakka Krishaks.

Some confusion is sought to be introduced in the case by an ingenious argument that the share which the Defendants gave to the Plaintiffs amounted to "Lagan". But I am afraid I can not accept this contention. The two documents referred to above leave no manner of doubt that after deducting the expenses, the balance, which represents the profit would be divided on the basis of fifty-fifty, Sharing of the profit in the way indicated in the agreement cannot by any flight of imagination be regarded as "Lagan".

Perhaps the learned appellate Could has been misled in this case by the use of the learns "Patta" and "Kabuliyat". "Patta" and Kabuliyat'' no doubt are terms usually used to describe the relationship between the land-lord and the tenant. But the learned Judge ought not to have forgotten that Equity does not look to the form but to the intention of.

In the plaint, the prayer of the Plaintiff is that they be declared Pukka Krishaks and that the Defendants be declared as Shikmis. In the view that I take of the matter, the Defendant's can not be held to be either tenants or Shikmis, because they are Bataidars. The prayer appears to have been inserted clumsily and carelessly for which the counsel of the Plaintiff is to be blamed. Their Lordships of the Supreme Court in AIR 1952 SC 41 (Kadarlal Seal v. Harilal Seal) have observed that. "It is always open to a Court to give the Plaintiff such general brother relief as it deems just to the same extent at if it had been asked for. "Anyhow, after reading the plaint. I find that the Plaintiffs in very inartistic language have also asked for any other relief which may be to their advantage. I can, therefore, ignore that part of the prayer, which cannot be granted.

For reasons stated above, the appeal is allowed and setting aside the judgment and decree of the first appellate Court, the decision of the trial Court is confirmed with costs throughout.