1. The respondent to this appeal obtained a decree for the sale of a tank and certain other property which had been mortgaged to him by the appellant. On the respondent putting in an application for the sale of the property in execution of the decree, the appellant objected that the sale was prohibited by Section 47 of the Chota Nagpur Tenancy Act 6 of 1908. The first Court allowed the objection, but on appeal the Additional Judge of Manbhum held that the sale of the property was not prohibited by the section referred to. It was contended before us that the objection to the sale had been taken too late and that if the appellant desired to raise this objection he should have done so before the decree was passed. In the case of Lakshmi Bibi Kujrani v. Atal Behari Halder(1) it was decided that an objection of this kind might be taken after the passing of the decree for sale on a mortgage. We are of the same opinion. Section 47 of the Chota Nagpur Tenancy Act, provides that no decree or order shall be passed by any Court for the sale of the right of a raiyat in his holding, nor shall any such right be sold in execution of any decree or order. It appears to us that the second portion of this provision applies to the present lease and that it was the duty of the Court executing the decree to consider whether the sale of the property was forbidden by the section. As regards the tank, it is sufficient to say that there is no evidence whatever that it forms part of an agricultural holding. This appeal so far as it relates to the tank must be dismissed. The remainder of the land is held by the appellant under a mukarrari lease of Asarh 1248 Fasli granted by one Sree Gulap Singh, who describes himself as a jagirdar. The material portion of the lease is as follows:
“I grant you a mukarrari lease in respect of (the land is described) at an annual rental of Rs. 5-8-0 on receipt of a premium of Rs. 11. I cease to have any right to the said land from this date and you acquire the right thereto. You will continue to enjoy the land from generation to generation by payment of the said rent from year to year without any enhancement or reduction. If I or my heirs claim the land from you or your heirs, the claim will be null and void.”
2. The area of the land is not given in the lease. One of the witnesses examined in this case says that the area is more than 100 bighas. The evidence on both sides shows that portions of the land have been sold by the “lessees,” but the dates of the sales have not been proved. The decree-holder contends that the judgment-debtor is a tenure-holder while the judgment-debtor contends that he is a raiyat in respect of the land in question. In the Chota Nagpur Tenancy Act, “tenure-holder” means primarily a person who has acquired from the proprietor, or from another tenure-holder, a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it; and includes (a) the successors in interest of persons who have acquired such a right, and (b) the holders of tenures entered in any register prepared and confirmed under the Chota Nagpur Tenancy Act, 1869; but does not include a mundari khunt-khattidar.
“Raiyat” means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family, or by hired servants, or with the aid of partners; and includes the successors-in-interest of persons who have such a right, but does not include a mundari khunt khattidar.
3. Explanation.—Where a tenant of land has the right to bring it under cultivation, he shall be deemed to have acquired a right to hold it for the purpose of gathering the produce of it or of grazing cattle on it. (2) A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a mundari khunt-khattidar. (3) In determining whether a tenant is a tenure-holder or a raiyat, the Court shall have regard to: (a) local custom, and (b) the purpose for which the right of tenancy was originally acquired. It is therefore necessary to ascertain the purpose for which the right to hold the land was acquired. The purpose for which the lease was granted is not stated in the document and the Courts below do not seem to have devoted much attention to the question. The result is that the oral evidence on the subject is extremely vague.
4. We direct that the record be returned to the lower appellate Court in order that a definite finding may be recorded as to the area of the land, the purpose for which the lease was granted and as to the dates and particulars of transfer of the land effected by the lessees. The Court should also ascertain whether the lessor was a zamindar or a tenure-holder. “Jagirdar” is not conclusive.
V.S/R.K
5. Issue remitted.