Mr. Ameer Ali. -

This is an appeal from a judgment and decree of the High Court of Patna pronounced on the 18th June, 1923, 'which, reversing the decree of the Subordinate Judge, made on the 26th May, 1920, dismissed the plaintiff's suit.

The action is for the possession of some lands lying in a village, or, rather, in a conglomeration of village and hamlets, called collectively Mouzah Katauna, situated in parganah Bihar, district Patna. In this district propetary rights are often split up amongst numbers of owners and frequently run into very small fractions. The present case furnishes not only an illustration of the infinity of sub-division, but also of the inconvenience to revenue officers in dealing with the shares. Until its parti tion in 1914, to which reference will be made particularly later on, Mouzah Katauna bore one tauzi number (10905) and paid to the Government a consoli dated jama (revenue) of Rs. 1,542. The mouzah was held by a number of proprie tors (maliks) in specific but undivided shares. Apparently, when the partition was started there were some fourteen sets of co-sharers. The plaintiff owned a little over ,4 annas or one-fourth ; whilst one Munshi Bakhori Lal, now deceased, the husband of the first defen dant, held an anna and a fraction. Besides his proprietary or milkiat inter est in the village, he owned a mokurrari, or permanent tenure, and some lands which were in his direct cultivation.

It should be observed here that besides Bakhori Lal, the other maliks also held possession, in proportion to their milkiat shares, the same class of lands which appear to have been called minhai khudkasht - minhai because the lands by private arrangement among the cosharer-proprietors had been exempted from payment of rent and khudkasht because they were the owner's " private lands." The definition of the zamindar's " private lands " in S. 120 of the Bengal Tenancy Act (VIII of 1885) will be referred to later.

It is to these lands held by Bakhori Lal that the present dispute relates.

Long before the Government resolved to institute a survey and have a record of rights prepared under Chapter X of the bengal tenancy act, preliminary to a partition among the several maliks, Bakhori Lal had parted with almost the whole of his proprietary rights and interests in the village. The fractional share he retained was held ijmali with the purchasers.

To the sale deeds their Lordships will refer later, as they throw considerable light on the question for determination in this appeal.

This joint holding appears to have been maintained by the Batwara officer.

The survey settlement officer, on the conclusion of the record of rights, made an entry under S. 103 B, as follows (omitting the boundaries of the plots) :-

SURVEY KHATIAN OF VILLAGE KATAUNA

Village - Katauna No. 307. Estate - Mohamoodpur Bhaidi, Mohanpur Bhaidi, Ugarsenpur Bhaidi, Rajpur Bhaidi, otherwise called Kat-auna.

Tauzi No. - 10905.

Patti, - Katauna. Name of proprietor and num-ber in proprietary Khewat-Babu Dhakesar Parsad Narain Singh alias B. Hari-har Prasad Narain Singh and others Khewat No. 3. Name of tenure-holder and number in tenure-holder's if any - Shamilat Bakhori Lal and others recorded in Khewat No. 14.

Bakasht of Malik and others 3598 Paddy 31 30 In possession of Bakhori Lal with field.

3625 Do. 16 26 In possession of Bakhori Lal.

It will be noticed that in the above entry Bakhori Lal is described as tenure-holder and the lands are stated to be in his direct cultivation. There is no mention of any raiyati kasht. The two Plots No. 3598 and No. 3625 appear to have been included by the survey officer in the plaintiff's property.

Broadly speaking, the bengal tenancy act classifies agricultural lands under two heads : (1) Kaiyati lands, in respect of which a raiyat acquires a right of occupancy which is explained in Chapter V ; and (2) lands which are held by the malik or owner, in his own direct culti vation, and are called in the Act the "private lands " of 'the zamindar. In these lands the raiyat cannot acquire a right of occupancy.

The zamindar's '' private lands " are dealt with in Chapter XI under the heading of " non-accrual of occupancy rights, etc., S. 116 (as amended by the Bengal,Act I of 1907) provides :

" Nothing in Chapter V shall confer a right occupancy in, and nothing in Chapter VI shall apply to

[lands acquired under the Land Acquisition Act, 1894, for the Government or for the Local Authority or for a Railway Company, or lands belonging to the Government within a Canton ment, while such lands remained the property of the Government, or of any Local Authority or Railway Company, or to]

a proprietor's private lands known in Bengal as khamar, nij or nijjot [and in Bihar as zirdat, nij, sir or khamat], where any such land is held under a lease for a term of years or under a lease from year to year.

Then dealing with the powers of a revenue officer appointed in any particular locality to make a survey of the proprietor's " private lands," it is provided by S. 120 :

" (1) The Revenue Officer shall record as a. proprietor's private land :

(a) land which is proved to have been culti vated as khamar [zirdat, sir,] nij, nijjot [or kaniat] by the proprietor himself with his own stock or by his own servants or by hired labour for twelve continuous years immediately before, the passing of this Act, and

(b) cultivated land which is recognized by village usage as proprietor's khamar [zirdat, sirj nij, nijjot, [or kamat].

" (2) In determining whether any other land ought to be recorded as a proprietor's private land, the officer shall have regard to local custom and to the question whether the laud was, before the second day of March 1883, specifically let as proprietor's private land, and to any other evidence that may be produced ; but shall pre sume that land is not a proprietor's private land until the contrary is shown."

It is evident from the present record that besides the words sir and zeraifc the term khudkasht is in common use in this part of Bihar as a synonym of sir. Khudkasht literally means " one's own cultivation." It appears that a new designation has sprung up in Bihar, in the course of proceedings under the Partition Act (V of 1897) and in the Record of Rights Survey the revenue officers found in the landlord's possession, and under their cultivation, lands in regard to which it was difficult to ascertain whether they were sir or zerait, or whether they were raiyati lands temporarily in the posses sion of the zamindar. These officers appear to have solved the difficulty by inventing a new designation for this kind of lands. They called it bakasht. The word bakasht literally means in the cultivation of," and when the word malik is added to it, the difference between khudkasht and ba-kasht-i-malik becomes very slight.

The idea was apparently to leave it to the civil Courts to find out on the evidence of the parties the origin and nature of the lands held by the zamindar as bakasht.

The question now presented for the determination of the Board relates to the interpretation to be attached to the entry in the Record of Rights, Shortly after the survey the partition proceedings in the present case followed. They were long drawn and complicated, and their Lordships are not surprised that the Batwara officer was bewildered. There were fourteen parties represented by nine pleaders and legal practitioners. The present defendant (Gulab Kuer) and the vendees of her husband claimed to have the sixty-seven bighas of bakasht lands in a single takhta.

On the 14th September 1914, the Batwara officer made the following order, which their Lordships consider should be set out in full :

" 14-9-14 ; '' Read petition No. I. Mr. S. Gupta, Vakil.

dated 12-9-14 filed by II. Mr. Ambika Pd., Bar

Mt. Gulab Kuer, wife at-law.

of Bakhori Lal, Also III. M. S. Gupta,

petition on behalf of IV. M. S Gupta.

parties I, III ; V and V. M. S. Gupta.

XIII filed, petitions VI.

rejected. VII. Tika Singh.

" I have heard the VIII.

parties at great length. IX.

The Bakasht lands of X.

about 67 Bighas XI. Bani Pd.

which have been XII. Jang Bahadur Singh.

entered in the Record-of XIII. Mr. S. Gupta.

Rights as being in Ej. Gopalji.

possession of the Ijmal Maliks (Bakhori Lal) has been assessed to rent under S. 3. XV, of the Batwara Act. It is doubtful if S. 77, Act V of 1897, will apply to the case ; of the Bakasht lands of 67 Bigeas of Ijmal party as the explanation to S. 77, seems to exclude all Khanear lands, etc., and to apply to Raiyati lands as only. These lands were original Raiyati lands as was admitted by Bakhori Lal in his deposition in the civil Court in Case No. 54 of 1891 (Munsiff of Bihar). These Bakasht lands of 67 Bighas and odd of party Ijmal were evidently in this original Raiyati land. The Roadcess return of 1894 supports this view. S. 22, Cl. 2, of the Bengal Tenancy Act will apply in this case ; so far as I can make out these lands will retain this Raiyati character subject to payment of rent assessed thereupon by me, in case these lands fall outside the Takhta of Ijmal. The point is not free from doubt and the question can only be finally decided by the civil Court."

Their Lordships desire to lay proper emphasis on this passage :

" The Batwara officer continues thus :- I have followed the Record-of-Rights and applied the [Batwara law (S. 3, XV (6)] upon it. I will give Takhta to Ijmal according to his share in Reg. D and Ijmal has been recorded as Bakasht Malik in 67 Bighas 11 Katthas 15 Duhrs of Khudkasht lands as shown in Amin's report of khudkasht lands. S. 77, Act V of 1897, will not apply to this 67 bighas 11 katthas 15 dhurs of khud (?) land of Ijmal party. This is to be governed by S. 22 of the Bengal Tenancy Act.

"I have heard all the objections urged before me.

"Plots Nos. 7362 - 7362 (?) to go to Ijmal as they are in possession of Bakhori Lal."

Then followed a series of petitions and expostulations on the part of Gulab Kuer. She claimed that the lands of which a part had been allotted to the plaintiff were her husband's bakasht lands of which he had been long in pos session, and that the Batwara officer had no power to assess rent thereon.

Her contention went in appeal after successive stages to the Board of Re venue, and was dismissed by the revenue authorities in succession. Throughout the proceedings in the revenue Courts she never appears to have taken her stand on the claim that those lands formed part of a raiyati kasht. In the result the takhta allotted to the plaintiff included some 47 bighas of the lands which were-held by Bakhori Lal "in his own cultivation." The plaintiff there upon attempted to take possession of the same ; he was resisted, which led to criminal proceedings in the Magistrate's Court. As the defendant was in posses sion of the lands in dispute, the plaintiff was referred to assert his right in the civil Court. Accordingly, he brought this action on the 4th February 1919, in the Second Court of the Subordinate Judge of Patna

The defendants in the action are Gulab Kuer, the widow of Bakhori Lal, his daughter, and the daughter's son, Gopalji, who is the reversioner to Bakhori's estate.

The Defendant No. 1 alleged, in her written statement, that the lands in suit had always been held by her husband for many years past as a raiyati holding, and that the Batwara officer's award was illegal. With reference to the previous statements regarding the khudkasht or bakasht nature of the lands, she made this further allegation :

As during the survey the husband of this De fendant No. 1 being very old could not personally look after the survey proceedings and moreover as he had also become the proprietor of a frac tional share in Mauza Katauna aforesaid, the survey authorities wrongly and in utter disregard of the legal aspect recorded the disputed land constituting his raiyati kasht as his bakasht land, although the said land had been his raiyati kasht for a long time.

The question for determination thus narrowed itself to two issues ; first, whether the entry in the record of rights was correct ; and, secondly, what was meant by bakasht lands.

In other words, were the bakasht lands, as the defendant contended, Bakhori Lal's raiyati kasht ? The Sub ordinate Judge held that the defendant was bound by the entry in the record of rights, and that the lands were the sir lands of Bakhori Lal, and that the allot ment to plaintiff was valid. ' He also held that the receipts and luggit state ments adduced by the defendant to establish her allegation that the lands were a raiyati kasht were not genuine. He considered them to be unworthy of credit, for reasons he stated in his judg ment. He accordingly made a decree in favour of the plaintiff. The defendants appealed to the High Court of Patna. The learned Judges, differing from the first Court, reversed its order and dis missed the plaintiff's suit.

Mr. Justice Ross was of opinion that S. 22." (Cl. 2) of the Bengal Tenancy Act, as amended by Act I of 1907, applied to the case. He also relied on the receipt and luggits produced by the defendant, and came to the conclusion that the lands held by the defendant's husband formed a raiyati kasht. Mr. Justice Jwala Prasad, in his judgment, dealt with the case from a different point of view. He proceeded on different premises, but came to the same conclusion - that the expression "bakasht" in this case denoted a raiyati kasht. The learned Judges accordingly dismissed the plain tiff's suit for the actual or khas posses sion of the lands allotted to him. Hence this appeal to His Majesty in Council.

Before dealing with the point at issue their Lordships desire to observe that S. 22 (2) of the Bengal Tenancy Act, which has been held by the High Court to apply to the subject-matter of the suit, runs as follows :

If the occupancy-right in land is transferred to a person jointly interested in the land as pro prietor or permanent tenure-holder, he shall be entitled to hold the land subject to the payment to his co-proprietors or joint permanent tenure-holders of the shares of the rent which may be from time to time payable to them ; and, if such transferee sub-lets the land to a third person, such third person shall be deemed to be a tenure holder or a raiyat, as the case may be, in respect of the land.

It can only apply on the assumption that an occupancy right existed in the lands, which right is transferred to a person jointly interested ; in other words, that a raiyati kasht existed in fact. In the present case the raiyati right is in controversy, and consequently the section has no application until the claim is established.

With regard to the view expressed by Mr. Justice Jwala Prasad, it is enough to observe that although the Batwara officer, following the survey officer, de clared the lands held by Bakhori Lal to be kasht lands, and although the Bat wara officer stated dubitante that Bakhori Lal at one time had stated he held a raiyati kasht, the entry, in fact, records the lands to be bakasht lands. So far as this declaration is concerned the entry made by the survey officer under S. 103-B. Cl. 3, is to be assumed to be correct until the contrary is proved. The defendant Gulab Kuer has chal lenged its correctness. The question is : Has she established her allegation ?

Bakhori Lal, as already stated, con veyed to a number of persons, by several deeds of sale, shares of his milkiat or pro prietary interest which he possessed in the village. In the kabala executed by him to one Dundi Sahu, on the 13th Sep tember 1888, after reciting the share he was conveying, he states what he does not include under the sale in the following terms : With the exception of jagir lands, etc., and lands excepted under the Muhammadan Law and by the standing customs, as well as of the minhai khudkasht lauds which have been partitioned among the 16-annas co-sharers in proportion to their shares.

In another document executed on the 29th March 1890, in favour of one Bhintoman Singh, he excepts from the sale the khudkasht lands, known as minhai land, to the extent of the share allotted under private partition among the 16-annas co-sharers.

In another document of the same date executed in favour of Nilkanth Singh, the following passage is embodied:

Be it known that the said purchaser has willingly agreed to exclude in proportion to the share sold the khudkasht land called minhai land partitioned by the 16 as, co-sharers. To this the said purchaser or his heirs or representatives shall have no claim or contention.

The same exception is made in other conveyances.

It is to be observed here that a large area of khudkasht lands in this village have been partitioned among the co-sharers, which, as already stated, being exempted from payment of rent, are called minhai. There is absolutely nothing to show on the evidence to what other lands these clauses in the deeds of sale relate.

Their Lordships have no doubt that when Bakhori Lal excluded from his sale khudkasht lands, he was referring to lands which he had under his own cultivation, described in the record of rights and the Batwara khatian as bakasht lands.

The term " bakasht, " invented by the revenue officers to meet a certain con tingency, conveys to all intents and purposes the same meaning as khudkasht, which is admittedly the same as sir or zerait. It might, however, imply raiyati lands that had temporarily come into the possession of the landlord and were temporarily under his cultivation. In the present case, however, there is no evidence, and certainly nothing is brought to their Lordships' notice, to show to whom the alleged raiyati kasht belonged, or when it came into the possession of Bakhori Lal. The defen dants' allegation accordingly is not established. Some stress is laid in the judgment appealed against on the fact that the Batwara officer assessed rent on the lands allotted to the plaintiff as indicating that he regarded it as a raiyati holding. S. 3, Cl.15, of Act V of 1897, to which reference is made, empowers the partitioning officer for the purpose of equalizing the al lotment, to assess the rents on the lands allotted. Clause 15 defines " assets" as follows : " Assets, when used with reference to land, means :

(a) In the case of land held by cultivating raiyats, the rent payable by them.

(b) In the case of land which is occupied by a proprietor, the rent which might reasonably be expected to be pay able by cultivating raiyats if the land were occupied by them.

This has, in their Lordships' opinion, nothing to do with the fixing or assessment of rent when a raiyati kasht falls within the allotment of a proprietor. That question appears to be, dealt with by other sections.

With regard to the objection put forward by counsel for the respondents, that the plaintiff's suit is barred under Article 14, Schedule 1, of the Limitation Act, their Lordships desire be observe that this suit is not brought for the purpose of setting aside any order of the revenue Court ; it is simply an action in ejectment, its main purpose being to recover possession of certain lands allotted to the plaintiff.

On the whole, their Lordships are of opinion that this appeal should be al lowed, the decree of the High Court should be reversed, and that of the Subordinate Judge restored with costs.

And their Lordships will humbly advise His Majesty accordingly.

Appeal allowed.