Ramautar Mahton v. Latak Bihari Singh — 1951 DIGILAW 52 (PAT)

Judgment Rai, J. 1. In all these appeals the defendants are the appellants. As one of the matters under consideration is common to all these appeals, they have been made analogous in this Court. The suit and the appeals before the lower appellate Court also had been heard together and they are governed by the same judgment. 2. I propose to deal, first with S. A. 1997-99 of 1948. These three appeals arise out of three title suits filed for realization of arrears of rent for the years 1349 to 1352 Fasli and for ejectment of the defendants-appellants. The case of the plaintiffs was that the area concerned in each of the three suits was included within the Patna City Municipality. The lands had been settled with the ancestors of the defendants for cultivation sometimes before the year 1900, on annual rentals. The plaintiffs alleged that the defendants were merely tenants at will and they were liable to be ejected whenever the plaintiffs chose to da so. 3. The suits were contested by the defendants. Their plea was that they had acquired a right of occupancy in the lands in suits from which they could not be ejected. They further pleaded that the plaintiffs had. given in their plaint false rentals for the holdings in suits. 4. The tral Court allowed the claim of the plaintiffs for ejectment and for arrears of rent at the rate admitted by the defendants. On appeal by the defendants the judgment and the decree of the trial Court were confirmed. Both the Courts below held that as the lands in suit lie within the Patna City Municipality the provisions of Bihar Tenancy Act do not apply to these cases. The defendants have come in second appeal before this Court. 5. In this Court the learned Counsel for the appellants contended that the Courts below were-wrong in holding that the provisions of the Bihar Tenancy Act do not apply to this case. He urged that the decision of a single Judge of this Court in the case of PHULCHAND V/s. MRS. NATEE MIRZA, AIR 1942 Pat 325 relied upon by both the Courts below has been overruled in the case Of SHRIKISHUN LAL v. HARISARSAB, i7 Pat. 194. He urged that the decision of a single Judge of this Court in the case of PHULCHAND V/s. MRS. NATEE MIRZA, AIR 1942 Pat 325 relied upon by both the Courts below has been overruled in the case Of SHRIKISHUN LAL v. HARISARSAB, i7 Pat. 194. He further contended that the provisions of Sub-section (3) of Sec.1 Bihar Tenancy Act make it clear that unless the whole or portion of an area comprised within a municipality is notified to have been exempted from the operation of the Bihar Tenancy Act, the provisions of the Act will apply to the lands within a municipality also. Sec.1 Sub-section (3) of the Bihar Tenancy Act runs thus : "1(3). It shall extend to the districts of Patna, Gaya, Shahabad, Mizaffarpur, Saran, champa-ran, Darbhanga, Bhagalpur, Monghyr and Pur-nea. except an area constituted, or deemed to hare been constituted, a municipality, under the provisions of the Bihar & Orissa Municipal Act, 1922, or part thereof, if such area is specified in a notification issued in this behalf by the Provincial Government." 6. According to this submission, therefore, the defendants having remained In cultivating possession of the lands in suit for more than twelve years, will be deemed to have acquired the status of an occupancy raiyat and as such they cannot be ejected unless the case is brought within the four corners of Ss. 25 and 155 of the Bihar Tenancy Act which run thus : "25. 25 and 155 of the Bihar Tenancy Act which run thus : "25. An occupancy raiyat shall not be ejected by his landlord from his holding, except in execution of a decree for ejectment passed on the ground (a) that he used the land comprised in his holding in a manner which renders it unfit for the purposes of the tenancy, or (b) that he has broken a condition consistent with the provisions of this Act, and on breach of which is under the terms of a contract between himself and his landlord liable to be ejected." "155(1) A suit for the ejectment of a tenant, on the ground (a) that he has used the land in a manner which renders it unfit for the purposes of the tenancy, or (b) that he has broken a condition on breach of which he is under the terms of a contract between him and the landlord, liable to ejectment, shall not be entertained unless the landlord has served, in the prescribed manner, a notice on the tenant specifying the particular misuse or breach complained of, and, where the misuse or breach is capable of remedy, requiring the tenant to remedy the same, and, in any case, to pay, reasonable compensation for the misuse or breach, and the tenant has failed to comply within a reasonable time with that request. 2. A decree passed in favour of landlord in any such suit shall declare the amount of compensation which would reasonably be payable to the plaintiff for the misuse or breach and whether, in the opinion of the Court, the misuse or breach is capable of remedy, and shall fix a period during which it shall be open to the defendant to pay that amount to the plaintiff, and where the misuse or breach is declared to be capable of remedy, to remedy the same. 3. The Court may, from time to time, for special reasons, extend a period fixed by it under Sub-section (2). 4. If the defendant, within the period or extended period (as the case may be) fixed by the Court under this section, pays the compensation mentioned in the decree, and where the misuse or breach is declared by the Court to be capable of remedy, remedies the misuse on breach to the satisfaction of the Court, the decree shall not be executed." 7. In my opinion, this contention appears to be well founded in law. 8. Mr. Raj Kishore Prasad, the learned Counsel fop the plaintiffs-respondents, however, contended that the notification contemplated by Sec.1(3) of the Bihar Tenancy Act meant only a notification issued for including a particular area within a municipality and not a notification excluding any area within a municipality from the operations of the Bihar Tenancy Act. According to him on this interpretation of the sub-section, as the Patna City Municipality had been coming in existence since before the passing of the Bengal Tenancy Act of 1885 it would not apply to any area within that municipality because there will arise no occasion after the passing of the Act to issue a notification constituting that Municipality. In my opinion there is no force in this argument. What notification was contemplated to be issued in accordance with the provisions of Sub-section (3* of 5. 1 of the Act is further clarified by the provisions of Sec.19, Sub-section (1) and (2) of the Bihar Tenancy Act which run as follows : "19(1) Every raiyat, who, immediately before the commencement of this Act or the Bengal Tenancy (Amendment) Act, 1907, has, by the operation of any enactment, by custom or otherwise, a right of the occupancy in any land, shall, when this Act or the Bengal Tenancy (Amendment) Act, 1907 comes into force, have a right of occupancy in that land. 2. The exclusion from the operation of this Act, by a notification under Sub-section (3) of Sec.1 of any area constituted or deemed to have been constituted a municipality under the provisions of the Bihar and Orissa Municipal Act, 1922, or of any part of such area, shall not affect any right obligation or liability previously acquired, incurred or accrued in reference to such area." From the wordings of Sub-section (2) quoted above, it is clear that the notification mentioned under Sec.1 (3) Of the Act really meant a notification regarding the exclusion of an area within a municipality from the purview of the Bihar Tenancy Act. Besides this, if the intention of the legislature would have been to exclude the entire municipal area from the purview of the Bihar Tenancy Act, then it was not necessary to use the words "or part thereof" in that sub-section. Besides this, if the intention of the legislature would have been to exclude the entire municipal area from the purview of the Bihar Tenancy Act, then it was not necessary to use the words "or part thereof" in that sub-section. The use of these words clearly indicate that a portion of the area included within a municipality can be excluded by a notification. In this view of the matter, in my opinion, the Courts below were wrong in holding that the provisions of the Bihar Tenancy Act do not apply to the present case. The defendants appellants have admittedly been in cultivating possession of the lands in suit for more than twelve years and as such they will be deemed to have acquired the right of occupancy in them. The claim for ejectment should have, therefore been disallowed. The defendants do not challenge the decrees of the Courts below concerning the arrears of rent decreed by them. 9. The result is that the judgments and decrees of the Courts below are modified, the claim for ejectment ia disallowed and these appeals are allowed with costs throughout. 10. Second Appeal 2141 of 1948, has been preferred by the heirs and legal representatives of the defendant of Title suit No. 158 of 1945 which had been instituted for realization of the arrears of rent from 1347 to 1352 Fasli and also for ejectment of the defendant. 11. The case of the plaintiffs was that on the 25th of June, 1923 the defendant Narain Mahto, on payment of a zarpeshgi amount of Rs. 437-took settlement of 2 bighas 8 kathas of land by a registered kabuliat agreeing to pay an annual rental of Rs. 57. After sometime Narain Mahto took settlement of a further area of 3 1/2 kathas on an annual jama of Rs. 7. Thus, the total jama payable by him came to Rs. 64 per year. 12. The defence, inter alia, was that the defendant could not be ejected, as he had acquired the right of occupancy in the lands in suit. 13. The trial Court decreed the suit holding that the defendant had not acquired any right of occupancy in the lands in suit, which lies within the Patna City Municipality. Relying on the decision in the case of PHULCHAND V/s. MRS. 13. The trial Court decreed the suit holding that the defendant had not acquired any right of occupancy in the lands in suit, which lies within the Patna City Municipality. Relying on the decision in the case of PHULCHAND V/s. MRS. NA-TEE MIRZA, AIR 1942 Pat 325 supra it held that the provisions of the Bihar Tenancy Act do not apply to this case. The judgment and the decree of the trial Court were affirmed on appeal. 14. I have already held above that the view of the Courts below on this point was wrong. As the defendant had been in cultivating possession of the lands in suit for more than twelve years, he will be deemed to have acquired right of occupancy in the lands and he cannot be ejected in the present action. 15. On the strength of an observation made in the judgment of the trial Court that the possession of the defendant might be that of a mortgagee, the learned counsel for the plaintiffs-respondents submitted that the defendant will have to vacate the lands after the zarpesngi amount of Rs. 43 is paid to him. But, I fail to understand how the registered kabuliat dated the 25th of June, 1923, executed by Narain Mahton will confer on him the status of a mortgagee. A mortgage deed is always executed by the mortgagor. In this view of the matter, it cannot, for a moment, be urged that the plaintiffs can get possession after paying Rs. 43 to the defendant. 16. The Courts below have further committed an error of law in decreeing the claim for arrears of rent for sis years under the impression that the claim of the plaintiffs to realise the arrears was based on the registered kabuliat dated the 25th of June 1923. But really it is not so. According to the case of the plainliffs themselves the jama claimed had been arrived at by amalgamating the area originally settled with another area of 3 1/2 kathas taken on a rental of Rs. 7 per year. This amalgamated holding is a new holding and the claim for arrears of rent of this new holding cannot be referable to the registered kabuliat dated the 25th of June, 1923. In this view of the matter the claim for arrears of rent should have been decreed only for four years, 17. 7 per year. This amalgamated holding is a new holding and the claim for arrears of rent of this new holding cannot be referable to the registered kabuliat dated the 25th of June, 1923. In this view of the matter the claim for arrears of rent should have been decreed only for four years, 17. The result is that the judgment and the decree of the Courts below are modified. The claim for ejectment of the defendant is hereby disallowed. The plaintiffs are not entitled to get a decree for the arrears for the years 1347 to 1348 Fasli. 18. The suit is decreed in part for the arrears of rent for four years only. This appeal is thus allowed in part. The defendant will get costs of all the Courts. 19. The plaintiffs-respondents have filed cross-objectiohs in second appeal 1997 and 1999 of 1948. These cross-objections relate to the rate of rent. In Second Appeal 1999 of 1948 which arises out of Title suit No. 157 of 1945 the plaintiffs had claimed the annual jama of 196/3/6. According to the defendants, the annual jama was Rs. 72 and odd only. Both the Courts below nave decreed the suit on the jama admitted by the defendants. 20. Mr. Rajkishore Prasad, the learned Counsel for the plaintiffs submitted that his clients had filed several papers to show that other ten-ants in the locality pay a rent of Rs. 2 per katha according to the custom prevalent in the locality. But in spite of such papers both the Courts below have accepted the rate of rent admitted by the defendant. There is no error of law in the view taken by the Courts below, This cross-objection, therefore, must fail. 21. The other cross-objection relates to S. A. 1997 of 1948, which arises out of Title suit No. 160 of 1945. In this case the jama claimed by the plaintiffs was Bs. 32/2/6, while, according to the defendant, the jama for the holding was only Rs. 6/8/-. Both the Courts below have accepted the jama admitted by the defendant. 22. In this Court Mr. Rajkishore Prasad relied upon Ex. 7, a copy of an application under Sec.112A of the Bihar Tenancy Act said to have been served on his clients. In that paper Rs. 18 is mentioned as the jama payable. 6/8/-. Both the Courts below have accepted the jama admitted by the defendant. 22. In this Court Mr. Rajkishore Prasad relied upon Ex. 7, a copy of an application under Sec.112A of the Bihar Tenancy Act said to have been served on his clients. In that paper Rs. 18 is mentioned as the jama payable. He submitted that the suit should have been decreed at least at the rate of Rs. 18 per year as mentioned in Ex. 7. Both the Courts below have rightly not relied upon this document. After examination, I find that Ex. 7 relates to plot No. 2200 while title suit No. 160 of 1945 is in respect of plot No. 2201. In this view of the matter, the Courts below were right in not relying upon Ex. 7. 23. The result is that both the cross-objections are dismissed with costs.