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Nandkishore Singh v. Mathura Sahu
Structured Summary of the Opinion (Jwala Prasad, A.C.J.)
Factual and Procedural Background
This is an appeal under the Letters Patent from a decision of Mr. Justice Adami dated 12th August 1920, which had upset the District Judge's decision and restored that of the Munsif, resulting in dismissal of the plaintiffs' suit. The dispute arose from a delivery of possession under a batwara (partition) on 24th February 1916, when the lands in question fell into the takhta (allotment) of the defendants. After delivery of possession, the defendants instituted criminal proceedings under Section 144 of the Criminal Procedure Code, leading to an order dated 2nd June 1916 restraining the plaintiffs from using the lands.
The plaintiffs and defendants were co-sharers in the estate and had held a mortgage of a 4 annas share of another co-sharer of the villages Semraon and Akari. The plaintiffs purchased occupancy holdings of certain tenants and also took certain plots in rehan. The mortgagors later redeemed the mortgage and sued the plaintiffs, defendants and others in the Subordinate Judge's Court at Arrah; that litigation proceeded to the High Court, which held (in Rambrick Narayan v. Ambica Prosad) that the mortgagors could treat holdings purchased by mortgagees as accessions to the mortgaged property and obtain possession on payment of the purchase-money. The purchase-money was not paid and the plaintiffs remained in possession.
In the Survey and Settlement records the lands were shown as bakasht and recorded in the possession of the plaintiffs as being held under Section 22(2) of the Bengal Tenancy Act. After publication of the Record-of-Rights there was a partition under the Estates Partition Act in 1916. Under Section 49, the Survey Record-of-Rights was accepted as the basis of partition, and the disputed lands (9-65 acres), recorded as bakasht and in plaintiffs' possession under Section 22(2), were allotted to the defendants' patti.
The plaintiffs claimed to hold under Section 22(2) relying on the Survey Record-of-Rights and the batwara khatian. The defendants contended the lands were bakasht or zerait of the proprietors and that the batwara proceedings extinguished any rights the plaintiffs claimed from prior purchases; they also invoked Section 119 of the Estates Partition Act and relied on Section 94, Chapter X of that Act as to the partition allocations. Mr. Justice Adami accepted the defendants' contentions; the present opinion examines and overturns that view.
Legal Issues Presented
- Whether Section 119 of the Estates Partition Act bars the plaintiffs' suit as effectively seeking to upset the batwara khatian or the valuation/allotment made in the partition proceedings.
- Whether the plaintiffs, who were co-sharers and had purchased occupancy holdings, may continue to hold possession of those holdings after partition under Section 22(2) of the Bengal Tenancy Act.
- Whether the entries in the batwara khatian (adopting the Survey Record-of-Rights recording the lands as bakasht) operate as an estoppel preventing the plaintiffs from asserting their claimed status and possession.
- Whether the plaintiffs' status should be characterised under Section 22(1) (merger of tenancy and proprietorship where a 16 annas proprietor purchases a holding) rather than Section 22(2), because no rent was ever paid.
Arguments of the Parties
Appellants (Plaintiffs)
- The plaintiffs relied on the Survey Record-of-Rights and the batwara khatian which adopted that record; both records described the lands as in plaintiffs' possession, and the Survey Record-of-Rights explicitly stated that possession was under Section 22(2) of the Bengal Tenancy Act.
- The plaintiffs contended that the batwara proceedings continued their former possession and that their grievance arose only after delivery of possession and the subsequent order under Section 144 CrPC.
Respondents (Defendants)
- Mr. Kulwant Sahay (for defendants) argued that Section 119 of the Estates Partition Act barred the plaintiffs' suit because it effectively sought to upset the valuation/allotment made in the batwara; since the plaintiffs were parties to the partition proceedings, they are estopped from contradicting entries in the batwara khatian that described the land as bakasht and allotted it to the defendants.
- It was further argued that the present action sought to disturb the direct possession awarded to the defendants under Section 94, Chapter X of the Estates Partition Act.
- Reliance was placed on prior authorities to the effect that a co-sharer cannot show that land entered as raiyati was in fact zerait land; and it was also argued that the plaintiffs' status should have been governed by Section 22(1) (merger into proprietorship) rather than Section 22(2), on the ground that no rent had ever been paid by the plaintiffs.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rambrick Narayan v. Ambica Prosad (High Court decision) | That mortgagors were entitled to treat holdings purchased by mortgagees as accessions to the mortgaged property and could obtain possession by paying the purchase-money; description of circumstances where no rent was due between proprietors and mortgagees. | The Court relied on this decision to explain the factual and legal circumstances of the prior purchases and to show that, in the matrix of these transactions, no rent was in fact due when accounts were taken between proprietors and mortgagees; this supported the conclusion that plaintiffs' possession was by purchase as part-proprietors and consistent with entry under Section 22(2). |
| Baldeo Sahai v. Brijnandan Sahay | Principle that a co-sharer is not permitted to show that land entered as raiyati land was in fact zerait land. | The Court accepted the principle but distinguished it as not being the scope of the plaintiffs' suit, which was founded on possession recorded in the batwara khatian and the Survey Record-of-Rights, rather than an attempt to relabel raiyati/zerait status contrary to the Record-of-Rights. |
| Ram Prasad v. Munshi Gopal Chand | Authority holding that a co-proprietor who purchases kasht (cultivated) land may continue to hold possession after partition, subject to payment of rent to co-sharers; partition does not of itself divest such purchased possession. | The Court relied on this judgment (quoted at length) to reject the contention that partition altered the plaintiffs' rights: it held that a co-proprietor should not be deprived of land he purchased simply because partition later allots the land to another patti, and thus concluded plaintiffs could continue possession under Section 22(2) on payment of rent. |
Court's Reasoning and Analysis
The Court's analysis proceeds through a sequence of interrelated legal and factual determinations:
- On the applicability of Section 119 (Estates Partition Act): The Court found Section 119 inapplicable because the plaintiffs' pleadings did not show that any particular order of the Revenue Authorities, made under the Estates Partition Act, was being assailed or sought to be set aside by the plaintiffs' suit. Section 119 operates as a bar only where a suit attacks specified partition orders; the defendants failed to identify any such specific order that the present suit purported to challenge. Accordingly, the estoppel argument based on Section 119 was overruled.
- On the interpretation of the batwara khatian and Survey Record-of-Rights: The batwara khatian had adopted the Survey Record-of-Rights, and under Section 49 the Record-of-Rights was accepted as the basis for partition. The Court held that the batwara khatian must be read in the light of the Survey Record-of-Rights. Because the Survey Record-of-Rights expressly described the plaintiffs' possession as being under Section 22(2) of the Bengal Tenancy Act and stated that the plaintiffs were in possession as purchasers, the khatian did not operate to extinguish that recorded factual state of possession.
- On estoppel from partition entries and batwara: While acknowledging that a co-sharer is ordinarily estopped from asserting rights contrary to the Record-of-Rights as approved in batwara proceedings, the Court emphasised that the plaintiffs' claim was founded on the very entries in the batwara khatian and the Survey Record-of-Rights (which described their possession as purchasers under Section 22(2)). Therefore, the defendants' estoppel argument mischaracterised the plaintiffs' case.
- On the plaintiffs' legal status and payment of rent under Section 22: The defendants argued that the proper status was under Section 22(1) (merger into proprietorship) because no rent had been paid. The Court examined the factual context, including the High Court decision (Rambrick Narayan) which explained that during the subsistence of the mortgage there was no one else to whom rents could be paid and consequently no rent had been due following accounting between proprietors and mortgagees. After redemption of the mortgage, the plaintiffs and defendants were not the entire proprietors, and the question was whether any rent was payable (not whether rent had historically been collected). The Court found that the plaintiffs had purchased as part-proprietors and that the Survey Record-of-Rights correctly described their possession under Section 22(2).
- On the effect of partition: The defendants contended partition altered plaintiffs' status so they could not claim under Section 22(2) post-partition. The Court relied on the earlier judgment in Ram Prasad v. Munshi Gopal Chand, observing it would be anomalous and unjust to deprive a co-proprietor who had purchased kasht lands of the right to retain them simply because a subsequent partition allotted those lands to another patti. The Court read the statute as imposing the condition of payment of proportionate rent but not limiting the duration of possession to pre-partition period or making it contingent upon the absence of partition.
- Conclusion of analysis: Putting these points together, the Court concluded that (a) Section 119 did not bar the suit as pleaded; (b) the batwara khatian, in adopting the Survey Record-of-Rights, supported the plaintiffs' claim to possess as purchasers recorded under Section 22(2); (c) the plaintiffs' purchase as part-proprietors entitled them to hold the lands subject to proportionate rent; and (d) partition did not operate to divest their statutory right to continue possession. On that basis the Court disagreed with Mr. Justice Adami's view and allowed the appeals.
Holding and Implications
APPEAL ALLOWED.
The Court decreed the appeals and consequently decreed the suits of the plaintiffs with costs throughout. The direct legal effect on the parties is that the plaintiffs are entitled to continue to hold possession of the disputed lands as purchasers and as part-proprietors under Section 22(2) of the Bengal Tenancy Act, subject to payment of proportionate rent to the defendants.
The opinion does not purport to set out any broader novel precedent beyond the application and reconciliation of earlier authorities to the facts; the decision overturns Mr. Justice Adami's conclusion on the particular facts and legal characterisation before the Court, and no broader prospective rule beyond these holdings is expressly announced in the text.
Jwala Prasad, A.C.J:— These are appeals under the Letters Patent from a decision of Mr. Justice Adami, dated the 12th August, 1920. By his decision Mr. Justice Adami upset the decision of Mr. Boyce, District Judge of Shahabad, and restored that of the Munsif of that district with the result that the plaintiffs' suit has been dismissed.
2. The suit arises out of delivery of possession under a batwara which took place on the 24th February, 1916, the disputed lands having fallen into takhta of the defendants. After the delivery of possession the defendants instituted criminal proceedings under Section 144 of the Cr PC in which an order dated the 2nd June, 1916 restraining the plaintiffs from using the lands in question was passed. The plaintiffs and defendants were co-sharers in the estate and had held a mortgage of the 4 annas share of another co-sharer of the villages Semraon and Akari. The plaintiffs purchased the occupancy holdings of certain tenants under kobalas and also took certain plots of land in rehan from different persons. The mortgagors redeemed the mortgage and brought separate suits against the plaintiffs, the defendants and others in the Court of the Subordinate Judge at Arrah. That case was fought up to the High Court. The High Court held that the mortgagors were entitled to treat the holdings purchased by the mortgagees as accessions to the mortgaged property and to obtain possession of them on paying the purchase-money. The decision of the High Court is reported in Rambrick Narayan v. Ambica Prosad(1). The purchase, money was not paid and the plaintiffs continued in possession of the holdings.
3. In the Survey and Settlement record the lands were shown as bakasht and in possession of the plaintiffs under Section 22(2) of the Bengal Tenancy Act. After the publication of the Record-of-Rights there was a collect crate partition under the Estates Partition Act in 1916 between the co-sharers. Under Section 49 the survey Record-of-Rights was accepted as the basis of the partition. The lands in dispute 9-65 acres in area which were recorded in the survey as bakasht and in possession of the plaintiffs under Section 22(2) were allotted to the patti of the defendants.
4. The plaintiffs claim to hold the land in their possession under Section 22(2) on the strength of the survey Record-of-Rights as well as the batwara kkatian which followed the survey. The defendants, on the other hand, claim to hold the land in their possession as being bakasht or zerait of the proprietors. They assert that whatever rights the plaintiffs may have acquired by the purchase prior to partition were done away with by the batwara proceedings. They also dispute the plaintiffs' right to institute the present suit and refer to Section 119 of the Estates Partition Act. The contentions of the defendants succeeded before Mr. Justice Adami, and the plaintiffs challenge before us the soundness of the view taken by that learned Judge.
5. The strongest point urged by Mr. Kulwant Sahay on behalf of the defendants in support of the judgment is that based on Section 119 of the Estates Partition Act. It is said that the present suit virtually seeks to upset the valuation of the allotment of the lands by the batwara and that the plaintiffs, who were parties to the proceedings, are estopped from claiming the lands as against the entries made in the batwara khatian, describing the land as the bakasht of the proprietors and as having fallen into the pattis of the defendants.
6. It is also urged that the present action seeks to disturb the direct possession of the land in suit awarded to the defendants under Section 94, Chapter X of the Estates Partition Act. The ingenious argument of Mr. Kulwant Sahay lent great colour to the simple point involved in this contention. True, the plaintiffs being co-sharers and parties to the partition proceedings are estopped from claiming otherwise than the Record-of-Rights, as approved by the batwara proceedings, purports to give them.
7. I am in full accord with the view expressed in the case of Baldeo Sahai v. Brijnandan Sahay(2) that a co-sharer is not permitted to show that land entered as raiyati land was as a matter of fact zerait land. This is, however, not the scope of the plaintiffs' suit. The plaintiffs' case, if I understand it aright, is founded upon the batwara khatian and the description of the lands mentioned therein. That khatian has, as observed above, simply adopted the survey Record-of-Rights. The lands no doubt in both the survey Record-of-Rights and batwara khatian have been described as bakasht lands.
8. Both the records state that the same are in possession of the plaintiff as purchasers thereof. Survey record makes it still clearer by describing the possession of the plaintiffs to be under Section 22(2) of the Bengal Tenancy Act. The batwara khatian has, therefore, to be interpreted with the help of the survey Record-of-Rights, for under Section 49 the entire Record-of-Rights was accepted for the purposes of the partition, and under the subsequent section there is nothing to show that the Record-of-Rights was in any way varied.
9. The plaintiffs nowhere say that they have been aggrieved in any way by the batwara proceedings in paragraphs 7 and 8 the plaintiffs have clearly based their claim upon the batwara proceedings and say that their former possession was continued by the batwara proceedings. Their grievance originates after the delivery of possession and the termination of the batwara proceedings and the order passed under Section 144 of the Cr PC at the instance of the defendants.
10. In this view Section 119 can be of no avail to the defendants nor need we consider it. Mr. Kulwant Sahay has, however, failed to show what particular order the suit of the plaintiffs seeks to set aside. Section 119 acts as a bar to a suit being brought against certain orders of the authorities passed under the Estates Partition Act. If the defendants seek to bar the plaintiffs' suit under that section they must clearly show in what respect the order of the Revenue Authorities is affected or sought to be set aside in the present suit. This Mr. Kulwant Sahay has failed to do. The contention must, therefore, be over-ruled.
11. The next contention is upon the status of the plaintiffs with respect to the lands in suit. It is said that the lands were bakasht of the proprietors and as such the plaintiffs had no right to the same if they fell into the pattis of the defendants in the partition proceedings. This would be so if the land was the bakasht of the proprietors prior to the partition. It is admitted that the lands formed originally the occupancy holdings of the tenants of the village. They were purchased by the plaintiffs, when they were part proprietors of the village and had held the other shares as mortgagees.
12. Reliance has been placed upon the judgment of the High Court at Calcutta referred to above in Ram Brich Narayan v. Ambica Prasad in order to show that the lands were purchased by the 16 annas proprietors and the status of the proprietors holding the lands was that described in Section 22(1) of the Bengal Tenancy Act, and not in Section 22(2). It is, however, said, the difference between the two clauses is that under the former when the 16 annas proprietor purchases a holding of a tenant, the interest of the landlord and the raiyat become united in the same person. In other words, the tenancy right is merged in the proprietary interest, whereas under Clause (2) when a part proprietor of a holding purchased the holding he is entitled to hold possession of the same subject to the payment of the proportionate rent to the other co-proprietor.
13. Mr. Kulwant Sahay says that no rent was ever paid for this holding by the plaintiff to any of the proprietors and, therefore Clause (2) of Section 22 does not apply. The circumstances under which no rent was paid was fully explained in the decision of the High Court relied upon by Mr. Kulwant Sahay. In that litigation both the plaintiffs and the defendants in the present case were defendants. Chatterji J., one of the Judges who decided that case, observed:
“The defendants, though holding different interests in the mahal and in the mortgage, represented between themselves the entire interest of the landlord for the time being, when the purchases were made. There was no one else to whom the portion of the rent, which was payable for the lands purchased by them, could be paid during the subsistence of the mortgage.”
14. The mortgage has been redeemed and the plaintiffs and the defendants are not the entire 16 annas proprietors of the mouza. The mortgagor is also in possession of certain shares in the village. The question is not whether any rent was ever realised but whether any rent was payable. There can hardly be any doubt that the purchase in the present case was by the plaintiffs co-sharers, and they were liable for the payment of the proportionate rent to the other co-sharers, but in the circumstances set forth in the judgment of the High Court, there was no rent due from them on accounts being taken between the several proprietors and the mortgagees.
15. The Survey Record-of-Rights states clearly that the possession of the plaintiffs was under Section 22(2). No doubt, that is the status described under the law, but the Survey Authorities being conversant with the Bengal Tenancy Act must be presumed to have fully appreciated the true scope and meaning of Clauses (1) and (2) of Section 22. The real import of the entry is one of fact that the plaintiffs as part-proprietors had purchased the holdings and were in possession thereof as part-proprietors. In this view the Survey Authorities made the aforesaid entry that their possession was under Section 22(2).
16. It is then contended that whatever the possession or status of the plaintiffs might have been before the partition, the partition effected a complete change in that status, inasmuch as the plaintiffs ceased to be co-proprietors after the partition, separate pattis or estates having been allotted to the several co-proprietors. The plaintiffs are not now the co-proprietors in the pattis allotted to the defendants wherein the land in dispute has fallen and consequently they cannot now claim possession of the land under Section 22(2). To this I replied in the case of Ram Prasad v. Munshi Gopal Chand(3) in the following words:—
“It will be anomalous and indeed unjust to permit a co-proprietor, after the kasht lands in the estate have been purchased by another co-proprietor at great expense, to go to the Collectorate partition and to claim the same as bakasht and to share in the acquisition to which he has not contributed a single farthing.”
“The section clearly empowers a co-proprietor to hold possession of the kasht land purchased by him the only condition imposed upon him being that he should pay rent therefor to his co-sharers. There is no limit of time of his possession nor is it controlled by any event, such as the partition of the estate. If his possession was to remain only for so long as the estate was not partitioned, it would have been clearly and unmistakeably expressed by the Legislature”.
17. I do not, on principle, see any reason why a flourishing co-sharer of a small fractional share in the village should be deprived of an opportunity of purchasing lands in occupancy holdings in the village, just in the same way as a stranger would be allowed to do. Neither law nor equity would make him worse than a stranger.”
18. The authorities quoted by Mr. Kulwant Sahay have also been dealt with in that judgment.
19. The term kasht or bakasht also does not at all embarrass me in any way. They are words of are introduced for the purpose of understanding the possession of lands by the proprietors and the tenants. The former term is one of recent creation by the Settlement authorities. The latter in its true sense equally applies to the cultivation of lands by the proprietors and the tenants. However, the question of status does not arise in the present case.
20. The real question is whether the plaintiffs are entitled to continue to hold possession of the land in the same way as they used to do before the partition of the estate.
21. I have discussed in detail the question in the case referred to above (2) and I do not want to repeat my arguments here. For the sake of brevity I would prefer to refer to the said judgment. I have no doubt that the plaintiffs are entitled to hold possession of the land on payment of rent to the defendants under Section 22(2) of the Bengal Tenancy Act.
22. I would therefore, respectfully differ from the view taken by my learned brother, Mr. Justice Adami, and would decree these appeals and consequently the suits of the plaintiffs with costs throughout.
23. Das, J.:— I agree.
24. Appeal allowed.
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