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Bijli Sahu And Ors. v. Bahadur Mahton And Ors.
Judgment Summary — Raj Kishore Prasad, J.
Factual and Procedural Background
The defendants are the appellants who appealed against the judgment of the Additional Subordinate Judge, Begusarai, which confirmed the trial court's judgment and decree in favour of the plaintiffs. The material facts set out in the opinion are:
- Defendant-appellants owned properties described in Schedule A of the plaint in village Banwaripur. They executed a sale deed in favour of the plaintiffs dated 29-6-1955 for Rs. 900/-. The plaintiffs thereafter came into possession of the properties.
- Because the defendants evaded admission of the sale deed before the registration office, the plaintiffs filed a "kebala" for compulsory registration before the Sub-Registrar, Teghra, on 4-7-1955; the deed was then compulsorily registered (the opinion records the registration date as 4-7-1955 in one place and refers elsewhere, when discussing the courts below, to registration on 4-7-1956).
- Other litigations occurred during the pendency of the compulsory registration matter; the plaintiffs filed, and lost, a criminal case against defendant No. 1 (Bijli Sahu). Consequently the plaintiffs instituted the present civil suit for declaration of title and recovery of possession over 5 kathas 7 dhurs with a house appertaining to Plot 253, Khata 139, Tauzi No. 1035 in village Banwaripur.
- The Bihar Tenancy Act was amended by the Bihar Tenancy (Amendment) Act, 1955 (Bihar Act 19 of 1955) and the amendment was notified to be effective from 4-11-1955 (Extra-ordinary Bihar Gazette dated 5-11-1955). The applicability of that amendment (in particular Section 49-C) and the applicability of the Bihar Privileged Persons Homestead Tenancy Act, 1947 (Bihar Act 4 of 1948) were central to the appeal.
Legal Issues Presented
- Whether the suit is barred or the sale is invalid under Section 49-C of the Bihar Tenancy Act, as inserted by the Bihar Tenancy (Amendment) Act, 1955, because the defendants are alleged to be "protected tenants" (members of scheduled castes, scheduled tribes or backward classes) whose transfers are restricted by that provision.
- Whether the defendants are "privileged tenants" within the meaning of Section 2(i) and 2(j) and protected by Section 8 of The Bihar Privileged Persons Homestead Tenancy Act, 1947, thereby precluding their ejectment except on the limited grounds specified in Section 8.
Arguments of the Parties
Appellants' Arguments
- Counsel for the appellants, Mr. Bindeshwari Chaudhary, advanced two main contentions: (i) that the suit was not maintainable because Section 49-C of the Bihar Tenancy Act (as amended in 1955) restricted transfers by "protected tenants" and thus the sale was invalid; and (ii) that the defendants were "privileged tenants" under the Act of 1948 and therefore could not be ejected except on the specific grounds listed in Section 8 of that Act.
- It was further contended on behalf of the appellants that even if the transfer was executed before Section 49-C came into force, the subsequent registration of the deed after Section 49-C came into effect would invalidate the transfer (a contention linked to the registration timing).
Respondents' / Plaintiffs' Arguments
The opinion does not contain a detailed account of the plaintiffs' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chait Ram v. Sikandar Choudhary (Full Bench), 1968 B.L.J.R. 103 | Reference as to the Notification contemplated by Explanation (3) to Section 49-B (i.e., the role and timing of the State Government's notification declaring backward classes). | The Court noted that the Notification (dated 7-2-1956) which included certain castes within "backward classes" post-dated the amendment to the Tenancy Act (which was effective from 4-11-1955). The case was used to acknowledge that 'Telis' were conceded to be included in the backward classes by the later Notification, but that such inclusion did not affect transfers executed prior to the amendment's effective date. |
Court's Reasoning and Analysis
The court addressed each of the appellants' two principal contentions in turn and applied statutory interpretation and evidentiary points from the record:
-
On the contention under Section 49-C (Bihar Tenancy Act, as amended 1955):
- The court accepted the principle (citing the Indian Registration Act — referred to in the opinion as Section 75 and Section 47) that a sale deed takes effect from the date of its execution and not from the date of its registration. Accordingly, the deed executed on 29-6-1955 was effective from that execution date.
- The amendment inserting Section 49-C was notified to be effective from 4-11-1955. Because the sale deed had been executed on 29-6-1955 (i.e., prior to 4-11-1955), the court held that Section 49-C could not be applied retrospectively to invalidate that transfer.
- The court rejected the appellants' argument that a later registration (recorded in parts of the opinion as occurring after Section 49-C came into effect) could invalidate a transfer executed before the amendment. The court reasoned that Section 49-C restricts transfers executed after it came into effect and does not expressly or impliedly operate retrospectively to invalidate transfers that were already executed when the provision came into being. Therefore, registration after the effective date does not make Section 49-C applicable to an earlier-executed transfer.
- The court relied on Section 49-B and its Explanation (3) (which contemplates a State Government notification identifying "backward classes") and noted the timing of that notification (dated 7-2-1956) but concluded that even if the appellants' caste (Telis) were covered by a later notification, that did not alter the basic chronological fact that the sale was executed before the amendment's effective date.
-
On the contention under the Privileged Persons Homestead Tenancy Act, 1947 (Act of 1948):
- The court examined the statutory definitions in Section 2(i) and 2(j) (defining "privileged person" and "privileged tenant"). The statutory definition requires, among other things, that a privileged person, besides his homestead, holds no other land or holds other land not exceeding one acre.
- The court observed that the defence that the defendants were "privileged persons" had not been specifically raised in the written statement (pleadings) and, moreover, had not been proved on the record. Both the trial court and the appellate court found that the evidence did not conclusively show that the appellants satisfied the essential conditions (particularly the requirement regarding the extent of other land held) needed to qualify as "privileged persons" or "privileged tenants".
- Because the appellants failed to establish that they fell within the statutory definitions, Section 8's protection for privileged tenants (against ejectment except on specified grounds) did not apply to them.
- The cumulative result of these analyses was that neither the amended tenancy prohibition (Section 49-C) nor the Privileged Persons Act prevented the plaintiffs' cause of action or entitled the defendants to avoid ejectment on the grounds asserted.
Holding and Implications
APPEAL DISMISSED
Direct effect on the parties:
- The judgment and decree of the trial court in favour of the plaintiffs, as affirmed by the Additional Subordinate Judge and placed before this Court on appeal, stand upheld.
- The appellants' contentions — that Section 49-C invalidated the sale and that they were privileged tenants protected from ejectment — were rejected for the reasons set out above.
- The Court ordered that, in the circumstances, there would be no order as to costs.
Broader implication: The opinion reasons that Section 49-C does not operate retrospectively to invalidate transfers executed prior to its effective date; it also emphasizes the evidentiary and pleading requirements to establish status as a "privileged person" or "privileged tenant" under the Act of 1948. The judgment does not purport to lay down a new legal precedent beyond its application to the facts of this case.
JUDGMENT Raj Kishore Prasad, J.
1. Defendants are the appellants. They have appealed from the judgment of the learned Additional Subordinate Judge, Begusarai, confirming the judgment and decree of the trial court decreeing the plaintiffs' suit.
2. Two points have been raised by Mr. Bindeshwari Chaudhary, who appeared for the appellants, in support of. the appeal: (i) that the suit was not maintainable in view of Section 49-C of the Bihar Tenancy Act, 1885, as amended by the Bihar Tenancy (Amendment) Act, 1955, (Bihar Act 19 of 1955)(hereinafter referred to as the Act of 1955), and, (ii) that the defendants were 'privileged tenants' and, therefore, in view of Section 8 of The Bihar Privileged Persons Homestead Tenancy Act, 1947, (Bihar Act 4 of 1948), (hereinafter referred to as the Act of 1948), they could not be ejected, except on the grounds mentioned in Section 8 of this Act, which do not exist in the present case.
3. In order to appreciate the points raised, it would be useful to state briefly the material facts of the case:
Defendant-appellants had some properties which are described in Schedule A of the plaint in village Banwaripur. They sold those properties to the plaintiffs by a registered sale deed dated 29-6-1955 for Rs. 900/- and since then the plaintiffs were coming in possession over the same. As the defendant-appellants evaded admission of the document before the registration office, the plaintiffs on 4-7-1955 filed the kebala before the Sub-Registrar, Teghra, for compulsory registration, and, then, it was compulsorily registered on 4-7-1955.
4. There were other litigations during the pendency of the compulsory registration case; but. it is not necessary to state them for the purpose of deciding the present appeal. It is enough to state that the plaintiffs filed a criminal case against Bijli Sahu, defendant appellant No. 1 but it was decided against the plaintiffs, and, therefore, arose the necessity of bringing the present suit for declaration of title to and recovery of possession over 5 kathas 7 dhurs with a house thereon appertaining to Plot 253, Khata 139, Tauzi No. 1035 in village Banwaripur.
5. The Bihar Tenancy Act was amended, as stated above, by Bihar Act 19 of 1955, which amendment came into force with effect from 4-11-1955 as per notification published in the Extra-ordinary Bihar Gazette dated 5-11-1955. On the above facts depends the decision of the two points raised in the appeal.
6. As regards the first submission that the suit was barred under Section 49-C of the Bihar Tenancy Act, the courts, below have held that Section 49-C of the Act of 1955 was not applicable to the facts of the case, because the sale deed was executed on 29-6-1955, although registered compulsorily on 4-7-1956, and Section 49-C came into effect from 4-11-1955. Under Section 75 of the Indian Registration Act, a sale deed takes effect from the date of the sale deed and not from the date of its registration. The sale deed, therefore, was effective from 29-6-1955 when it was executed and the fact that it was registered on 4-7-1956, after Section 49-C came into effect, will have no effect. The trial court in paragraph 24 of its judgment has given good reasons for saying that the provisions of Section 49-C of the newly amended Bihar Tenancy Act have no application, because it came into effect from 4-11-1955, whereas the sale deed, Ext. 1, was executed, prior to this amendment, on 29-6-1955,
7. In the above connection, reference was made to Section 49-B, Explanation (3) of the amended Bihar Tenancy Act and to Section 49-C of the same Act. Section 49-B with Explanation (3) and Section 49-C are in these terms:
49-B. Application of Chapter.-This Chapter shall apply to tenants who are members of the scheduled castes, scheduled tribes and backward classes (hereinafter referred to as protected tenants).
...
(3) 'Backward classes' means such classes of citizens as may be declared by the State Government by notification in the Official Gazette, to be socially and educationally backward.
49-C. Restriction on transfer of tenant's rights. No transfer by a protected tenant of his right in his tenure, holding or tenancy, or in any portion thereof, by private sale, gift, will, mortgage, lease or any contract or agreement, shall be valid to any extent except as provided in this Chapter.
Section 49-B lays down that this Chapter shall apply to tenants who are members of the scheduled castes, scheduled tribes and backward classes "hereinafter referred to as protected tenants". Admittedly the defendants-appellants are Telis by caste, and therefore, it was conceded that they do not come cither under 'Scheduled castes' or 'Scheduled Tribes', but it was argued that they come under 'backward classes' and, therefore, they would be deemed to be 'protected tenants' within the meaning of Section 49-B, and, as such, Section 49-C would apply-to them.
8. It will appear from a Full Bench decision of this Court in Chait Ram v. Sikandar Choudhary 1968 B.L.J.R. 103 in which 'Mallahs' were concerned that the Notification contemplated by Explanation 3 to Section 49-B was mentioned. It is dated 7th February, 1956, and, it was conceded by both sides that 'Telis' are included within the "backward classes"; but, in my opinion, that will not help the appellants. Even this Notification was issued on 7-2-1956, whereas the amendment was made, as mentioned above, with effect from 4-11-1955, and the sale deed was executed on 29-6-1955 and it was effective under Section 47 of the Indian Registration Act from the date of the sale. The crucial date is the execution of the sale deed and not its registration which only makes it effective from the date of its execution. In this view, therefore, Section 49-C will not invalidate the transfer as it does not operate retrospectively and as such, it has no application to the facts of the present case.
9. It was, however, contended that Section 49-C puts restriction on transfer of tenants' rights by protected tenants, like the appellants, arid, therefore, even if the transfer is effected before Section 49-C came into force but if it is registered after Section 49-C came into effect, the transfer would be invalidated by virtue of Section 19-C. I am afraid this contention is not correct in law. Section 49-C does not expressly or impliedly say that it will act retrospectively and., therefore, it must be taken that it had no retrospective effect. If that is so, then Section 49-C cannot effect transfers executed before Section 49-C came into effect even though such transfers are registered thereafter. Section 49-C does not say that registration of previously executed transfers will be invalid. Section 49-C places restriction only on the transfer. The true meaning of Section 49-C, therefore, is that after Section 49-C came into effect there can be no transfer by a "protected tenant" of his tenancy rights and as such if such a transfer is both executed and registered after Section 49-C came into effect, such a transfer will be invalid under Section 49-C. The first contention, therefore, fails.
10. As regards the second submission, it is necessary to refer to Section 2, Clauses (i) and (j) of the Act of 1948 where the word "Privileged person" and "privileged tenant" have been defined by the Act of 1948. It may be mentioned that this objection was not specifically taken in the written statement, by defendants. Section 4 of the Act of 1948 provides that Privileged tenant will have permanent tenancy in his holding and Section 8 protects such a "privileged tenant" from being ejected, except on one of the grounds mentioned in Section 8 of the Act of 1948, which, of course, are not present in the instant case. In the present case, this objection was taken in the trial court and the trial court has dealt with the point in paragraph 24 of its judgment, wherein the court has observed that no such defence was taken in the written statement or even before the appellate court which remanded the suit and there is nothing in the remand order to consider this aspect and nowhere neither in the pleading nor in the evidence it has been proved by the defendants that: they were "privileged persons". The appeal court has considered this point in paragraph 27 of its judgment wherein it has held that it was not proved that these defendants are 'privileged persons' as defined in the Act of 1948 because the evidence on the record does not conclusively show that the appellants, besides the land in suit, did not hold any other land or their entire holding did not exceed one acre, as required by the definition of the words "privileged persons" in Section 2(i) of the Act of 1948. Section 2(i) and (j) of the Act of 1948 are in these terms:
2. Definitions-In this Act, unless there is anything repugnant in the subject or context.
...
(i) "privileged person" means a person-
(1) who, is not a proprietor, tenure-holder, under tenure-holder or a mahajan; and (2) who, besides his homestead, holds no other land or holds any such land not exceeding one acre;
(j) "Privileged tenant" means a privileged person who holds homestead under another person and is or, but for a special contract would be, liable to pay rent for such homestead to such person.
...
11. From the above definition it is plain that in order to bring a person within the definition of "privileged person" it must be established, besides, What is mentioned in Section 2(i)(1), that besides his homestead he held no other land or holds such other land not exceeding one acre. This essential condition has not been proved. The appellants do not come also within the definition of 'privileged tenant' as defined in Section 2(j) because in order to be a privileged tenant, he must at first be a 'privileged person' which even the appellants here are not. For these reasons, the courts below have rightly held that the Act of 1948 did not apply here.
12. In the result, the appeal fails and is dismissed; but, in the circumstances of the case, there will be no order for costs.
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