Citation Codes

Equivalent Citations

citation codes

Case Number

Appeal No. 275 of 1928

Judges

Kulwant Sahay
Dhavle, JJ.

Acts

Section 21 (corresponding to Section 19 of the Chota Nagpur Tenancy Act) and Section 182 of the Ben. Ten. Act
Section 182. Section 78(1)(c) of the Chota Nagpur Tenancy Act, like Section 178(1)(a) of the Ben, Ten. Act
Section 49(b) of the Ben. Ten. Act. Their Lordships observed:Section 182,
provisions of Section 47 of the Chota Nagpur Tanancy Act.4.
provisions of Section 47 of the Chota Nagpur Tenancy Act.
Section 47 of the Chota Nagpur Tenancy Act.2.
Section 78 of the Chota Nagpur Tenancy Act
Section 19 of the Chota Nagpur Tenancy Act
provisions of the Bengal Tenancy Act

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Smart Summary

Summary of Opinion — Dhavle, J.

Factual and Procedural Background

This is an appeal by the judgment-debtors from an order disallowing their application which objected to the execution sale of homestead plot No. 658 on the ground that the plot was exempt from sale under Section 47 of the Chota Nagpur Tenancy Act.

The factual matrix in the opinion (as stated by the Court) is:

Plot No. 658, together with plots Nos. 656 and 657 and other plots, formed the judgment-debtors' homestead lands and were recorded in khata No. 40 of the Record-of-Rights showing the judgment-debtors as settled raiyats.
In 1925 a suit was brought against the judgment-debtors for recovery of possession of plots Nos. 656 and 657 on the basis of a kabala; the suit was decreed despite objections that the land could not be sold.
The present execution proceedings arose to recover costs awarded to the decree-holder in that suit and its appeal, and in those execution proceedings the appellants objected that plot No. 658 was exempt from sale under Section 47.
Both lower Courts disallowed the appellants' objection, in part on the ground that the appellants were precluded by res judicata since the question of liability of the homestead to sale had already been decided against them in the original suit and appeal.

Legal Issues Presented

Whether the doctrine of res judicata prevents the judgment-debtors from raising in execution proceedings the objection that their homestead plot is exempt from sale under Section 47 of the Chota Nagpur Tenancy Act.
Whether Section 78 of the Chota Nagpur Tenancy Act operates so as to make the appellants' interest in homestead plot No. 658 “the right of a raiyat in his holding” (and thereby make it immune from sale under Section 47).
Whether the appellants can claim an occupancy right under Section 19 (or Section 78 read with Section 19) of the Chota Nagpur Tenancy Act in respect of the Chandil homestead by virtue of being recorded as settled raiyats of an adjoining mouza (Kanglatanr).
Whether the homestead plot was exempt from sale under Section 60 of the Code of Civil Procedure (a question raised for the first time on appeal).

Arguments of the Parties

Appellants' Arguments

The homestead plot No. 658 is exempt from sale under Section 47 of the Chota Nagpur Tenancy Act, which (the appellants contend) bars not only decrees directing sale but also sales in execution of a decree.
Counsel relied on the authority of Rupnath Mandal v. Jagannath Mandal for the proposition that Section 47's bar on sales in execution applies even to mortgage decrees; quotations from that decision were cited to support the proposition that “it is altogether illegal to sell a raiyat right in land even in execution of a decree or order directing such a sale.”
The appellants contended that Section 78 of the Chota Nagpur Tenancy Act (in terms similar to Section 182 of the Bengal Tenancy Act) applies to homestead land and thereby makes the incidents of tenancy of the homestead regulated by the provisions of the Act applicable to land held by a raiyat; because the appellants were recorded as settled raiyats of Kanglatanr (an adjoining mouza), they claimed occupancy rights under Section 78.
Counsel invoked authorities such as Sukhlal Shah v. Prosanna Kumar Saha to argue that Section 78 can apply even where the homestead settlement preceded the raiyati settlement.
On appeal the appellants also raised for the first time that the homestead plot was exempt under Section 60 CPC.

Lower Courts / Respondent's Position (as recited in the opinion)

The lower Courts disallowed the appellants' objection to the execution sale and held, among other things, that the appellants were estopped by res judicata because the issue of whether the homestead was liable to sale had been decided adversely in the original suit and appeal.
The learned District Judge concluded that Section 78 did not apply because it must be shown that the homestead land was held as part of the raiyat holding; if the homestead came into the appellants' occupation before acquisition of a raiyati holding, Section 78 would not assist them, and it had not been proved otherwise.
The contention based on Section 60 CPC was not raised in the lower Courts and therefore, the evidence necessary to sustain that contention was not placed before the Court below.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rupnath Mandal v. Jagannath Mandal	Held that the bar imposed by the relevant Tenancy Act section upon sales in execution applied even to mortgage decrees; it was “altogether illegal to sell a raiyat right in land even in execution of a decree or order directing such a sale.”	Cited by appellants to support the view that Section 47 prevents sales in execution; the Court accepted the authority as establishing that Section 47 bars sale in execution but proceeded to consider whether Section 78 made the homestead the “right of a raiyat in his holding.”
Bhikariram Bhagat v. Maharaj Bahadur Singh	Cited in argument concerning the application and scope of provisions analogous to Section 78 / Section 182 (regulating incidents of tenancy of homestead).	The Court noted that counsel relied upon this case but examined its reasoning in light of other authorities; it used it as part of the backdrop for whether Section 78 could apply when the raiyati holding had ceased to exist.
Sukhlal Shah v. Prosanna Kumar Saha	Held that a tenant of homestead land settled earlier (about 1850) was not liable to be ejected under the Bengal Tenancy Act where he took a raiyati settlement later (1916); supports that Section 182 (analogous to S.78) can apply even if homestead settlement predates raiyati settlement.	Cited by appellants to argue Section 78 should protect their homestead even if the homestead settlement preceded raiyati settlement; the Court accepted this narrow principle but distinguished it because the appellants no longer had a raiyati holding in Kanglatanr.
Bishnath Singh v. Bibi Ayesha (linked in opinion)	Decision that incidents of tenancy of the homestead regulated by Section 182 apply to land actually held by the raiyat for the time being, not to land which might at any time have been held.	The Court relied on this decision to hold that Section 78 only applies so long as the tenant continues to be a raiyat in respect of other land actually held; since the lower Courts found the appellants' holding in Kanglatanr had ceased, Section 78 did not help them.
Krishna Kanta Ghose v. Jadu Kasya	Illustrates the distinction that Section 182 regulates incidents of tenancy of a homestead and does not itself create a raiyati interest; applied where an under-raiyat's tenancy incidents were governed by Section 182.	The Court relied on the distinction to emphasize that Section 78 regulates incidents but does not create a raiyati right in the homestead; thus appellants' status elsewhere did not convert the Chandil homestead into a raiyati holding.
Gaya Singh v. Dist. Board, Patna	Referred to in connection with whether Section 182 requires homestead and raiyati lands to be in the same village; the opinion cited it as raising a question.	The Court observed that because it held Section 78 inapplicable on other grounds, it was unnecessary to resolve the village-location question raised in Gaya Singh and related cases.
Kirpa Nath v. Anu	One of the cases considered in the context of whether Section 182 applies when homestead and raiyati lands are in different villages.	Mentioned by the Court as part of the cluster of authorities on the village-location issue; the Court did not decide that question here because it was unnecessary to the result.
Harihar Ghattopadhya v. Dinu Bora	Another case bearing on whether Section 182 applies across village boundaries.	Also mentioned as part of the set of authorities on the point; the Court refrained from deciding the issue in the present case.

Court's Reasoning and Analysis

The Court's reasoning proceeds in identifiable steps, strictly following the materials and arguments presented in the opinion:

Res judicata point:
- The lower Courts had relied on res judicata to bar the appellants from raising the exemption under Section 47 in execution. The Court held that this view must be overruled because Section 47 (as interpreted in authorities like Rupnath Mandal) imposes an independent statutory bar on sales in execution of a raiyat's right; that bar can be asserted in execution proceedings despite earlier adjudications on related questions in the original suit.
Whether Section 78 renders the homestead the “right of a raiyat in his holding”:
- The Court set out the text of Section 78 (identical in terms to Section 182 of the Bengal Tenancy Act) and framed the question as whether Section 78 makes the appellants' interest in plot No. 658 the protected “right of a raiyat in his holding” saved by Section 47.
- No local custom or usage was pleaded, so the Court focused on the statutory application of “the provisions of this Act applicable to land held by a raiyat” to the “incidents” of tenancy of the homestead.
- The District Judge had taken the view that Section 78 applies only if the homestead was held as part of a raiyati holding; if the homestead pre-dated the raiyati settlement, Section 78 would not help unless proved otherwise. The appellants did not now rely on the Record-of-Rights entry for Chandil (which had been held incorrect in earlier proceedings).
- The Court examined authorities (including Sukhlal Shah) which indicate that Section 78/182 can apply even where homestead settlement predates raiyati settlement. However, the Court distinguished those authorities on the crucial factual point that Section 78 operates only while the tenant continues to be a raiyat in respect of other land actually held for the time being.
- The Court relied particularly on its earlier decision in Bishnath Singh, holding that the statutory regulation of the incidents of homestead tenancy applies to land actually held by the raiyat at the relevant time and does not create a raiyati interest in land not actually held as part of a raiyati holding.
- Because there was a concurrent finding of the lower Courts that the appellants' raiyati holding in Kanglatanr had ceased to exist, Section 78 could not be relied upon to transform or protect the Chandil homestead as a raiyati “right in his holding.”
Distinction between regulating incidents and creating rights:
- The Court emphasized that Section 78 regulates the "incidents" of tenancy of a homestead (as held in Krishna Kanta Ghose and other authorities) but does not itself create a raiyati interest in the homestead.
- Accordingly, being a raiyat elsewhere, or previously, does not automatically convert the Chandil homestead into the type of raiyati holding protected from sale under Section 47.
Application of Section 19 and village-location points:
- The Court noted that Section 19 (cited) is limited to “land for the time being held by him as a raiyat” and to the village of which he is a settled raiyat; therefore, recorded settlement in an adjoining mouza (Kanglatanr) did not establish an occupancy right in Chandil given the factual findings about current holdings.
- The Court said it was unnecessary to decide ancillary questions raised in cited authorities (such as whether homestead and raiyati lands must be in the same village for Section 182/78 to apply) because the primary factual finding (cessation of the appellants' raiyati holding) disposed of the Section 78 contention.
Section 60 CPC point:
- The appellants' contention that the homestead was exempt under Section 60 CPC was not raised below; the Court refused to entertain it on appeal because the contention depended on matters of proof that were not placed in evidence before the lower Court.
Conclusion of analysis:
- On the combined statutory and precedential analysis, Section 78 did not avail the appellants because their raiyati holding had ceased; Section 78 regulates incidents and does not itself create a protective raiyati right; and therefore Section 47 did not operate to save the Chandil homestead from sale in execution in this case.

Holding and Implications

Holding: The appeal is APPEAL DISMISSED (the Court dismissed the appeal and ordered costs).

Implications:

Direct effect on the parties: The judgment-debtors' application opposing the execution sale of homestead plot No. 658 on the basis of Section 47/Section 78 was rejected; the execution sale is not prevented by those provisions on the facts found by the lower Courts, and the appeal does not revive the objection.
Evidence and procedure: The Court refused to entertain a new ground (exemption under Section 60 CPC) raised for the first time on appeal because requisite proof had not been adduced below.
Precedential impact: The opinion resolves the dispute on the particular factual foundation that the appellants' raiyati holding had ceased. The Court did not purport to create a broad new rule; it applied existing authorities to the facts and noted that certain related doctrinal questions (for example, village-location issues) were not necessary to decide in this case.

Note: This summary is based exclusively on the text of the provided opinion. Sections and statements reflect only what is contained in that opinion; no external facts or inferences beyond the opinion's text have been added.

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Joy Chand Kumar And Others Judgment-Debtor v. Bhutnath Khan Decree-Holder .

Dhavle, J.:— This is an appeal by the judgment-debtors from a decision disallowing their application objecting to the execution sale of a plot of land No. 658 on the ground that it was exempt from-sale under Section 47 of the Chota Nagpur Tenancy Act.

2. It appears that plot No. 658, together with plot Nos. 656 and 657 and other plots, formed the homestead lands of the judgment-debtors and was recorded in khata No. 40 of the Record-of-Rights which showed the status of the judgment debtors as settled raiyats. In 1925, a suit was brought against them for recovery of possession of plots Nos. 656 and 657 on the basis of a kabala. This was decreed in spite of the objection that the land could not be sold, and the execution case out of which the present appeal arises was started for recovery of the costs awarded to the decree-holder in the suit and appeal. The objection of the appellants that the land is exempt from sale has been disallowed by both the lower Courts. One of the grounds on which the lower Courts disallowed the appellants' objection is that the appellants were concluded by the principle of res judicata since the question of the liability of the homestead to sale was decided against them in the original suit and appeal. It has been contended on behalf of the appellants that the doctrine of res judicata has no application in view of the special provisions of Section 47 of the Chota Nagpur Tenancy Act. This section provides not only that no decree or order shall be passed by any Court for the sale of the right of a raiyat in his holding, but also that no such right shall be sold in execution of any decree or order. The learned advocate for the appellants has cited Rupnath Mandal v. Jagannath Mandal (1), a decision in which it was held that the bar imposed by the section upon sales in execution applied even to mortgage decrees. Macpherson, there observed:

“It is altogether illegal to sell a raiyat right in land even in execution of a decree or order directing such a sale. Not only may an objection be taken in execution that the land sought to be sold is not saleable.”

3. And Kulwant Sahay, J., held:

“Whether the judgment-debtor took the objection or not, the sale of a holding which found to be raiyati cannot take place in the face of the clear provisions of Section 47 of the Chota Nagpur Tanancy Act.”

4. The view of the lower Courts that the appellants are concluded by the doctrine of res judicata from raising the point in execution proceedings must therefore be overruled. The next point urged on behalf of the appellants is that they have an occupancy right in the homestead plot under S. 78 of the Act by reason of the fact that they are recorded as settled raiyats of Kanglatanr, a Mouza which adjoins Chandil, the mouza in which the plot in question is situated. As I have already said, the appellants are recorded as settled raiyats of Chandil as well, but in the original suit and appeal it was held that entry in the Record-of-Rights was incorrect, and appellants do not now take their stand on that entry. Now, S. 47 saves “the right of a raiyat in his holding”, and thus the question really is whether Section 78 of the Chota Nagpur Tenancy Act operates to make the appellants' interest in the homestead plot No. 658, “the right of a raiyat in his holding”. The section, which is in exactly the same terms as Section 182 of the Ben. Ten. Act, reads

“When a raiyat holds his homestead otherwise than as part of ‘his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage, and, subject to local custom or usage, by the provisions of this Act applicable to land held by a raiyat.”

5. No question of local custom or usage is raised in the case, and we have thus to consider the effect of the application of “the provisions of this Act applicable to land held by a raijat” to the “incidents” of the appellants' tenancy of the homestead plot. The learned District Judge considers that the section has no application for this reason among others, that

“it must be shown that the homestead land is held as a raiyat. If such land came to be in the occupation of the judgment-debtors before their acquisition of the raiyati holding, the section would obviously be of no assistance to them. It has not been proved that this was not the case or that it formed a necessary adjunct to the user of the raiyati lands.”

6. The learned advocate for the appellants has assailed this view of the strength of the rulings in Bhikariram Bhagat v. Maharaj Bahadur Singh (2) and Sukhlal Shah v. Prosanna Kumar Saha (3). In the later of these cases it was held that a tenant of homestead land which was settled with his predecessor “in about 1850” was not liable to be ejected from it under the Bengal Tenancy Act as he had taken a raiyati settlement of agricultural land in 1916, their being nothing in the Bengal Tenancy Act to save even pre-existing contracts from the operation of Section 182. Section 78(1)(c) of the Chota Nagpur Tenancy Act, like Section 178(1)(a) of the Ben, Ten. Act saves a tenant from ejectment notwithstanding any contract with the landlord made even before the commencement of the Act. It thus follows from the decision in Sukhlal Shaha's case that Section 78 of the Chota Nagpur Tenancy Act will apply even if a tenant took a settlement of a homestead before taking a raiyati or agricultural settlement. But there is a concurrent finding of the lower Courts that the appellants' holding in Kanglatanr has ceased to exist, and it seems to me that S. 78 will only apply so long as the tenant of the homestead continues to be a raiyat in respect of other land, but no longer. This was clearly brought out in a recent decision to which I was a party Bishnath Singh…Defendant v. Mt. Bibi Ayesha…Plaintiff . (4). The holding of a settled raiyat was in that case purchased by the landlord in execution of a rent decree and was again settled with him more than a year afterwards under a kabuliyat for nine years. The question was whether by the combined operation of Section 21 (corresponding to Section 19 of the Chota Nagpur Tenancy Act) and Section 182 of the Ben. Ten. Act the tenant acquired occupancy rights in the holding, under the fresh settlement, by reason of the fact that he had continued to hold some homestead land in the interval. It was held that the incidents of his tenancy of the homestead were under S. 182 regulated by the provisions of the Act applicable not to land which might at any time have been held, but to land actually held by him for the time being as a raiyat. The finding of the lower Courts that the appellants have no longer any raiyati lands in Kanglatanr will thus disentitle them to the benefit of Section 78 of the Chota Nagpur Tenancy Act. It will further appear from the decision in Bishnath Singh's case that the section merely provides how the “incidents” of the tenancy of the homestead shall be regulated and that it does not create a raiyati interest in the homestead land. The distinction comes out clearly in such cases as Krishna Kanta Ghose v. Jadu Kasya (5). That was a case in which a raiyat had taken a sub-lease of a homestead forming part of another raiyat's holding, and the question was whether as an under-raiyat he was not liable to be ejected from the homestead on a notice to quit, or whether Section 182 of the Ben. Ten. Act operated to save him from ejectment under Section 49(b) of the Ben. Ten. Act. Their Lordships observed:

“Section 182, however, provides not merely that the provisions of the Bengal Tenancy Act would apply, but that the provisions of the Act applicable to land held by a raiyat shall regulate the incidents of the tenancy of the homestead. If S. 182 applies, and we must hold that it does, having regard to the decisions cited above, the provisions of the Bengal Tenancy Act applicable to a raiyat would regulate the incidents of the tenancy of the homestead, though the defendant has only the interest of an under-raiyat with respect to it. It may lead to some anomalous results, but so would the application of S. 182 to the cases cited above, and the present case cannot be distinguished on principle from the said cases.”

7. It follows from this that the appellants' status as raiyats in Kanglatanr, even if it had continued to the date of the execution proceedings, will not operate to make their interest in the Chandil homestead “the right of a raiyat in his holding”. Nor will the fact that they were recorded as settled raiyats of Kanglatanr give them a right of occupancy under Section 19 of the Chota Nagpur Tenancy Act in the Chandil homestead, as the section is confined to “land for the time being held by him as a raiyat” and in the village of which he is a settled raiyat. In this view it becomes unnecessary to consider the question referred to in Gaya Singh v. Dist. Board, Patna (6), namely, how far it was correctly held in Kirpa Nath v. Anu (7) and Harihar Ghattopadhya v. Dinu Bora (8) that for Section 182 of the Ben. Ten. Act to apply it is not necessary that the homestead and the raiyati lands should be in the same village. As their Lordships observed on that occasion.

“This decision is very far-reaching, and may under suitable conditions require further judicial consideration in this province.”

8. The result is that Section 78 of the Chota. Nagpur Tenancy Act is not available to the appellants for saving their homestead plot from the execution sale. It has not Seemed to me worth while to deal with the question hinted at in the judgment of the learned Munsif whether the Record-of-Rights correctly shows the appellants as settled raiyats of Kanglatanr, having regard to the fact that the holding there consisted only of homestead plots some of which have been made info paddy fields. There is no pronouncement at all on the point in the judgment of the lower appellate Court, nor are there full findings of fact arrived at by the lower Courts on the point.

9. The only other question raised by the learned advocate for the appellants was that the homestead plot was exempt from the sale under Section 60 of the CPC. This contention was not raised below and cannot be now entertained as it depends on matters which required to be proved but were not put in evidence below.

10. In my opinion the appeal fails and must be dismissed with costs.

Kulwant Sahay, J.:— I agree.

V.B/R.K

11. Appeal dismissed.

Joy Chand Kumar And Others Judgment-Debtor v. Bhutnath Khan Decree-Holder .

Summary of Opinion — Dhavle, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Lower Courts / Respondent's Position (as recited in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Joy Chand Kumar And Others Judgment-Debtor v. Bhutnath Khan Decree-Holder .

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