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Kala Devi And Others v. Khelu Rai And Others
Case Summary — Opinion of Reuben, J. (with concurrence by Imam, J.)
Factual and Procedural Background
This appeal by the plaintiffs challenges the decision of the Additional District Judge of Dumka, which affirmed the decision of the Subordinate Judge, Deoghar.
The suit sought declaration of title to and recovery of possession of land formerly belonging to one Chuto Rai. The plaintiffs, Jaleshar and Binode, claimed to be the nearest agnates and heirs of Chuto Rai.
The courts below found, as an unchallenged fact on appeal, that defendants 1, 3 and 4 were agnates equally closely related to Chuto Rai, and accordingly granted the plaintiffs a decree for joint possession of the property to the extent of a two-fifths share. That factual finding is not contested before the High Court.
With respect to plot No. 735, the courts below held that defendants 7 to 9 had acquired permanent tenancy (occupancy) rights and decreed that the plaintiffs were landlords to the extent of a two-fifths share of the rent payable by defendants 7 to 9. Defendants 7 to 9 had entered under a kurfa settlement made by Chuto Rai in 1338 B.S. (1921 / 22 A.D.).
The appellants (plaintiffs) contend that under the Santal Parganas law (in particular S. 27 of the Santal Parganas Settlement Regulation, 1872), transfers by raiyats not recorded in the record of rights are invalid and, consequently, defendants 7 to 9 were trespassers who could not acquire the tenancy rights they claim. The appeal contests the legal correctness of the lower courts' decision that defendants 7 to 9 had acquired occupancy rights by twelve years' possession.
Legal Issues Presented
- Whether defendants 7 to 9, who entered under a kurfa settlement not shown to be recorded in the Settlement Record, could acquire permanent tenancy or occupancy rights in plot No. 735 despite S. 27, Regulation III of 1872, which requires recording of transfer rights.
- Whether possession by defendants 7 to 9 for twelve years in open assertion of permanent tenancy rights operated to create occupancy rights under S. 18 of the applicable regulation (i.e., whether prescriptive or statutory occupancy rights can arise despite an invalid transfer under S. 27).
- Whether payment of rent by those in possession prevents the acquisition of occupancy rights where the entrants originally entered as trespassers.
- Whether the plaintiffs may alter the basis of their claim at this stage by asserting an independent interest shown in the khatian (settlement record) jointly in the names of Chuto Rai, the plaintiffs, and Ganga Kumari.
Arguments of the Parties
Appellants' Arguments
- The appellants argued that defendants 7 to 9 could not obtain tenancy rights under the law prevailing in the Santal Parganas because S. 27, sub-s. (1) of the Santal Parganas Settlement Regulation, 1872, makes invalid any transfer (including lease) unless the right to transfer is recorded in the record of rights; and there is no evidence that any such right of transfer by lease was recorded in the Settlement Record for this mauza.
- On that basis, the appellants contended that defendants 7 to 9 were trespassers and that the plaintiffs were entitled to khas possession of plot No. 735 to the extent of their two-fifths share.
Defendants' Position (as reflected in the opinion)
- Defendants 7 to 9 held under a kurfa settlement purportedly made by Chuto Rai in 1338 B.S. (1921 / 22 A.D.) and had been in possession, asserting permanent tenancy rights, for a period of twelve years.
- The lower courts treated them as having acquired occupancy/permanent tenancy rights in respect of plot No. 735 and as tenants under the plaintiffs and their co-sharers, and there is no appeal or cross-objection against that treatment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rani Bhuneshwari Koer … Plaintiff v. Secretary Of State … Defendant, A.I.R. (24) 1937 Pat. 374 : (169 I.C. 756) | Principle that if a person (here, a Secretary of State) came on to the land as a trespasser with an open claim to permanent possession, acceptance of rent by the landlord would not create a tenancy-at-will or a tenancy from year to year. | The court relied on this authority to hold that the fact of the defendants having paid rent during the period of possession does not prevent their acquiring occupancy rights by prescription/statute after twelve years' open assertion of permanent tenancy rights. |
| Maharajah Bajundur Ktshwar Singh Bahadur v. Sheopursun Misser, 10 M.I.A. 438 : (2 Sar. 174) | Remarks explaining the legal effect of an intermediate tenure (e.g., an occupancy or similar intermediate right): that such tenure cuts off the zamindar's possession as to rents and profits and that an assertion of such an inferior title may prejudice the zamindar and justify suit for restoration of possession. | The court cited the Judicial Committee's remarks to elucidate the nature and seriousness of an intermediate tenure and to contextualize how assertion of such a title affects proprietary relations; these observations supported the court's analysis of the legal consequences of occupancy-type tenures. |
Court's Reasoning and Analysis
The Court proceeded through the following analytical steps, referring only to material contained in the opinion:
- Acceptance of lower courts' factual findings: The court noted that the finding that defendants 1, 3 and 4 were agnates and that plaintiffs were entitled to a two-fifths share of joint possession was a finding of fact not challenged on appeal; that part of the decree stands.
- Challenge focused on plot No. 735: Defendants 7 to 9 had entered under a kurfa settlement of 1338 B.S. (1921/22 A.D.). The appellants relied on S. 27, sub-s. (1) of the Santal Parganas Settlement Regulation (Regulation III of 1872) which invalidates transfers not recorded in the record of rights.
- Absence of record evidence: The Court observed there was no evidence on record that a right of transfer by lease was recorded; it noted that had any such note existed it would likely have been produced by defendants. On that basis it was assumed, for present purposes, that no such recorded right existed and therefore the lessees were initially trespassers under the Regulation.
- Effect of S. 27, sub-s. (2): The Court acknowledged that sub-s. (2) declares that transfers in contravention of sub-s. (1) shall not be recognized by any court, which supports the initial position that such entrants were trespassers.
- Application of S. 18 and the Limitation Act: The Court emphasized that the Santal Parganas Regulation made the whole of the Limitation Act applicable to the district, including provisions concerning prescriptive title. S. 18 of the relevant regulation provides that any raiyat (or through inheritance) who has held fields in a village for twelve years shall be deemed to have occupancy rights. Therefore, entrants who began as trespassers but who held land openly asserting permanent tenancy for twelve years could acquire the occupancy right provided for by S. 18.
- Payment of rent is not a bar: Relying on Rani Bhuneshwari Koer, the Court held that acceptance or payment of rent during the period of possession does not prevent acquisition of occupancy rights when entry began as a trespasser asserting permanent tenancy; acceptance of rent does not necessarily convert the relationship into a tenancy that would defeat the prescriptive acquisition.
- Consideration of settlement practice and record forms: The Court examined the Santal Parganas Manual and the different "programme" forms used in successive phases of the Revision Settlement. It noted a note in the first programme's form that a korfadar not recorded in settlement papers cannot acquire occupancy rights; but the mauza in question belonged to the second programme, whose corresponding form did not bear that restrictive note. Instead, the second-programme form contained a note allowing the Deputy Commissioner discretion to evict both transferor and transferee from alienated land (based on sub-s. (3) of S. 27, added by the 1908 amendment).
- Evolution of Settlement practice: The Court recounted the explanation by Settlement Officer Macpherson that korfadars were treated differently between programmes; in later settlement practice (and in the 1922-35 revision), the Assistant Settlement Officer was given responsibility to decide whether a sub-lessee should be entered as a jamabandi raiyat or omitted. This approach aligns with sub-s. (3) of S. 27 (as amended), which places eviction and resettlement as discretionary matters for the Deputy Commissioner.
- Convergence with Settlement authorities' view: The Court observed that the Settlement authorities' expressed view in the Manual and in the Final Report on the 1922-35 settlement supports the later approach to korfadar recording and is not inconsistent with the Court's reasoning in this case.
- Practical disposition and parties' positions: The Court noted that, in any event, the lower courts treated defendants 7 to 9 as tenants under the plaintiffs and co-sharers, and there is no appeal or cross-objection against that treatment. Therefore the Court did not need to decide broader questions about whether lessor-raiyats must go out altogether where korfadars have acquired permanent rights.
- Attempt to change basis of claim rejected: The plaintiffs attempted to assert, at the hearing, an alternative basis of title arising from a khatian in which the suit lands are recorded jointly in the names of Chuto Rai, the plaintiffs and Ganga Kumari. The Court rejected this attempt: it observed that the khatian covered other lands, that the remarks column showed possession as that of Chuto Rai and Ganga Kumari only, so the khatian was not conclusive of any independent interest of the plaintiffs; and further, plaintiffs could not change the basis of their claim at that late stage because they had litigated on the basis that they were heirs of Chuto Rai.
Holding and Implications
APPEAL DISMISSED.
Direct effect on the parties:
- The decree of the lower courts stands: the plaintiffs retain a decree for joint possession of the property to the extent of a two-fifths share (as to the general property), and as to plot No. 735 the courts below rightly held that defendants 7 to 9, having held the land for the statutory period under open assertion of permanent tenancy rights, acquired the occupancy/permanent tenancy rights they claimed and cannot be ejected.
- The plaintiffs' attempt to change the basis of their claim to an independent interest shown in the khatian was refused; the litigation proceeds on the original pleaded basis and the parties are bound by how the case was conducted below.
- The appeal is dismissed with costs. Imam, J. concurred in the result.
Broader legal implications: The opinion applies statutory prescriptive/occupancy provisions (S. 18 and the Limitation Act as made applicable to the Santal Parganas) to hold that twelve years' open assertion of permanent tenancy may confer occupancy rights even where an original transfer may have been invalid under S. 27; the Court also relied on settlement practice and authoritative commentary in the Santal Parganas Manual to interpret the practical administration of korfa/korfadar entries. The opinion does not purport to lay down a novel general precedent beyond the application of these statutory and settled principles to the facts; it affirms the lower courts' practical disposition in the case at hand.
Reuben, J.:— This appeal by the plaintiffs is directed against a decision of the Additional District Judge of Dumka affirming a decision of the Subordinate Judge, Deoghar.
2. This suit, brought for declaration of title to and recovery of possession of land, formerly belonging to one Chuto Rai, was based on the assertion that the plaintiffs, Jaleshar and Binode are the nearest agnates of Ghuto Rai and are his heirs. The Courts below have held that defendants 1, 3 and 4 are also agnates equally closely related to Chuto and have, therefore, granted the plaintiffs a decree for recovery of joint possession of the property to the extent of a two-fifths share. This finding, being a finding of fact, is not challenged before us, and that relates only to plot No. 735, in respect of which the Courts below have held that defendants 7 to 9 have acquired permanent tenancy rights therein, and have decreed in the plaintiffs' favour possession as landlords to the extent of a two-fifths share in the rent payable by these defendants. The contention of the appellants is that, under the law obtaining in the Santal Parganas, defendants 7 to 9 could not obtain the right claimed by them, that, they are, therefore, trespassers and the plaintiffs are entitled to khas possession of plot No. 735 to the extent of a two-fifths share. Defendants 7 to 9 are holding under a kurfa settlement made by Chotu Eai in the year 1338 B.S ((1921) 22 A.D). The appellants rely upon S. 27, sub-s. (1), Santal Parganas Settlement Regulation, 1872 (Regulation III[3] of 1872) which provides that no transfer by a raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, lease or any other contract or agreement, shall be valid unless the right to transfer has been recorded in the record of rights, and then only to the extent to which such right is so recorded. There is no evidence on the record as to whether there is any note of a right of transfer in the Settlement Record. Had there been any, we may take it that it would have been produced by the defendants. It may, therefore, be assumed that there is no right of transfer by lease in this mauza. Under sub-s. (2) of this section, it has been provided that no transfer in contravention of sub-s. (1) shall be regulated, or shall be in any way recognised as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction. The lessees, therefore, were from the beginning in the position of trespassers and there is substance in the appellants' contention that the Additional District Judge was wrong in holding that, by possession for twelve years, they have acquired occupancy rights under S. 18, the relevant portion of which runs as follows:
“Any raiyat who may, either himself or through persons from whom he inherits, have held fields in a village for a period of twelve years shall be deemed to have occupancy rights in such fields.”
3. It does not follow, however, that defendants 7 to 9 are still in the position of trespassers, for, by this very Regulation, the whole of the Limitation Act was made applicable to the Santal Parganas, including the provision regarding prescriptive title. It has accordingly been rightly held by the Subordinate Judge that the defendants, having entered on the land as trespassers and having held it for a period of twelve years in open assertion of permanent tenancy rights therein, have now acquired the right asserted by these and cannot be ejected. The fact that, during this time, they have been paying rents, will be no bar to the acquisition of such rights: vide Rani Bhuneshwari Koer…Plaintiff v. Secretary Of State…Defendant ., A.I.R (24) 1937 Pat. 374 : (169 I.C 756), where their Lordships observed at page 379:
“If the Secretary of State came on to the land as a trespasser with an open claim to permanent possession the acceptance of rent by the landlord would not create a tenancy-at-will or a tenancy from year to year.”
4. I may also refer to the following remarks of their Lordships of the Judicial Committee in Maharajah Bajundur Ktshwar Singh Bahadur v. Sheopursun Misser, 10 M.I.A 438 : (2 Sar. 174):
“If this tenure be not interposed between the Zamindar find the cultivators, the ordinary relation between him and them exists; but if it be interposed, the Zamindar's general proprietary title to the collections is gone, and in lieu of it he is simply entitled to some jumma from the mesne proprietors. It is obvious then, that the assertion of such a title is a serious prejudice to a Zamindar, and may materially interfere with his successful management of his Zamindary. Such an intermediate tenure cuts of the possession, that is, the Zamindar's title to the rents and profits derived from the cultivations.
In this sense, the term ‘possession’ is used in this plaint. Now, this injury, supposing the claim to the Bbakee Birt tenure to be groundless, is not the less a wrong requiring a remedy, when it is put forward by one in possession under a title to an inferior right, derived from the Zamindar; as, for instance, by a farm of a portion of the Zamindary. If such a claim were preferred by a person having such an interest, it would certainly be competent to the Zamindar, if the claim amounted to a repudiation or worked for forfeiture of the existing interest to sue for the restoration of possession, and the quieting of the claim also; because the limitation of his demand to that of possession would keep alive an adverse claim, and would also multiply suits.”
5. On behalf of the appellants, our attention has been drawn to the note in column 18 of the form of record of rights and duties of raiyats at p. 173, Santal Parganas Manual, 1911, which says:
“A karfadar who is not recorded in the settlement papers, or who becomes such after the settlement, cannot acquire any occupancy right or immunity from eviction.”
6. This form relates to the first programme of the Revision Settlement of 1898-1902, vide pages 165 and 166 of the Manual. The village with which we are concerned belongs to the second programme the corresponding form for which does not bear this note: vide p. 194 of the Manual. Instead, it contains a note that it shall be open to the Depty Commissioner to evict both the transferor and transferee from the area alienated—a note evidently based upon sub-s. (3) of S. 27, Santal Parganas Settlement Regulation of 1872. The form of the third programme is on the same lines as that of the second programme; vide p. 216 of the Manual.
7. The difference between the form of the first programme and the forms of the two later programmes is explained in a note on the Settlement records of the Santal Parganas prepared by the Settlement Officer, Mr. Macpheraon, and printed by the Order of Government (p. 109B of the Santal Parganas Manual). Dealing with the (Settlement practice regarding the recording of korfa settlement and alienations contrary to law, Mr. Macpherson explains at p. 116 of the Manual that Korfadars, whose names were recorded in the first programme, were recorded as such, unless they happened to be holding under the headman, in which case they were recorded as independent raiyats. It was in these circumstances that, in the form of the record of rights and duties the note was inserted about the position of the korfadar who is not recorded in the Settlement papers. According to the later Settlement rules, however, the korfadar was not to be recorded as such. This rule is set out at p. 158 of the Manual under the heading “Sub-leases”. It places on the Assistant Settlement Officer the responsibility for deciding in each case whether the sub-lessee should be regarded as a jamabandi raiyat or his name should be omitted from the record. In the former case, the sub-letting raiyat's name was to be removed from the Settlement record. This is on a line with sub-s. (3) of S. 27, Santal Parganas Settlement Regulation of 1872, under which it is entirely a matter for the discretion of the Deputy Commissioner whether the transferee should be evicted or not, and the Deputy Commissioner, in the event of the transferee being evicted, is given the power either to restore the transferred land to the raiyat or to resettle it with another raiyat. This section was inserted in the Santal Parganas Settlement Regulation by the Amending Regulation of 1908 (III of 1908) and had nothing corresponding to it in the Regulation as originally enacted.
8. The entries in these forms of the record of rights and duties represent the view taken by the Settlement authorities of the position of korfadars under the then existing law. The position was altered between the first programme and the later stages of the Settlement by the amendments in the Settlement Regulation. The Settlement authorities of the Revision Settlement of 1922-35 seem to have taken the same view as that taken in the later stages, for Mr. Gantzer in his Final Report on the settlement of 1922-35 states:
“The record of rights and duties for the third programme was drafted in Mac Pherson's settlement after a good deal of experience had been gained and, more important still, after the enactment of S. 27 of Regulation III of 1872. It was generally speaking, a complete and accurate codification of the revenue law of the district.”
9. The opinion of the Settlement authorities as to the rights in law to which a korfadar is entitled, so far as it is expressed in the passages to which I have referred above, is not inconsistent with the view which I am taking in this case. On the contrary, it appears to go even further in that it seems to suggest that, where the korfadar has acquired rights of a permanent nature, the lessor-raiyat must go out altogether. In the case before us, we are not concerned to examine the correctness of the proposition, because the Courts below have treated defendants 7 to 9 as tenants under the plaintiffs and their cosharers, and there is no appeal or cross-objection against this decision.
10. An attempt was made before us to shift the basis of the claim in the suit. Our attention was drawn to the fact that, in the records of the last settlement, the suit lands are recorded jointly in the names of Chuto Rai, the plaintiffs, and Ganga Kumari, widow of the uncle of Chuto Rai, and it has been suggested that the plaintiffs have an interest in the property in their own right as distinct from their claim as heirs of Chuto Rai. In this connection, it may be noticed that the khatian covers other lands as well, and that, in the remarks column, the possession of the suit lands is shown to be that of Chuto Rai and Ganga Kumari only, so that the khatian is not conclusive that the plaintiffs had any interest of their own independent of Chuto Rai in the suit lands. Further, it is not open to the plaintiffs to set up such a claim at the present stage of the litigation. They came to Court with a claim to the land as heirs of Chuto Rai, and it was on this basis that the suit was contested both in the Court of the Subordinate Judge and before the Additional District Judge: vide pages 2 and 9 of the paper book.
11. On the above grounds, the appeal fails and must be dismissed with costs. Imam, J.:— I agree.
K.S
12. Appeal dismissed.
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