JAGESHWAR SIKHAR v. YUBRAJIN SRIMATI BAIDEHI KUER — 1970 DIGILAW 11 (PAT)

JUDGMENT Bahadur, J. This is an appeal by defendants 1 to 4 arising out of a suit for declaration of title of plaintiff no. 1 and alternatively that of plaintiff no. 2; and for confirmation of possession in respect of the lands described in the plaint. The plaintiffs had claimed a further alternative relief for being put in possession after evicting defendant no. 1 from the suit lands in case they were not found to be in possession. 2. Shortly stated, the plaintiffs' case is that village Uchidih within the jurisdiction of police station Raidih in the district of Ranchi formed part of the estate of the late Maharaja Pratap Udainath Sahi Deo of Chotanagpur, great grandfather of plaintiff no. 2, and grandfather of the husband of plaintiff no. 1, who was the mother of plaintiff no. 2. By a registered indenture dated the 23rd November, 1949, the aforesaid Maharaja of Chotanagpur granted to plaintiff no. 1 his entire interest in the aforesaid village and other villages for her maintenance and the said grantee came in possession of the entire lands. It appears that the said village had been leased out by the Maharaja to certain persons before the cadastral survey, but at the time of the cadastral survey the said jagir was in possession of Kanhai Sahi. The Maharaja, however, resumed the grant on the death of Kanhai Sahi and allowed Parbati Kuer and Charan Kuer, mother and widow respectively of Kanhai Sahi, to cultivate and enjoy the usufructs of the Majhias and bakasht lands of the said village for their maintenance during their lives. Parbati Kuer and Charan Kuer executed and registered a keabuliyat on the 1st December, 1930, accepting the above terms. Parbati Kuer died first and Charan Kuer died later some time towards the end of the year 1953, whereupon plaintiff no. 1 entered in possession of the said lands. Plaintiff no. 1 remained in khas possession for some time and thereafter she sold a portion of these lands to certain persons and let out the other portion to different set of persons. Some time in 1955 defendant no. 1 made a claim in respect of the lands in suit on the footing that he was balposh of Parbati Kuer. Plaintiff no. 1 remained in khas possession for some time and thereafter she sold a portion of these lands to certain persons and let out the other portion to different set of persons. Some time in 1955 defendant no. 1 made a claim in respect of the lands in suit on the footing that he was balposh of Parbati Kuer. The claim led to a dispute and a proceeding under Section 144 of the Code of Criminal Procedure was started in respect of the suit land, which was converted later into a proceeding under Section 145 of the Code. The final order in the said proceeding was passed on the 26th May, 1958, against the temporary lessees and this cast a cloud on the plaintiffs' title. The Maharaja of Chotanagpur died in the year 1950 and after his death plaintiff no. 2 succeeded to his estate as being only member in the line of his eldest son according to the rule of lineal primogeniture. The plaintiffs thus filed the suit in July, 1958, out of which this appeal arises. 3. The defendants' case was that village Uchidih was held and possessed by Deo Sahi and his son Kanhai Sahi under a permanent heritable grant and the said Maharaja never resumed that grant after the death of Kanhai Sahi. After the death of Kanhai Sahi in their Parbati Kuer, Charan Kuer and Most. Gouri, daughter of Parbati Kuer, succeeded to the estate of Kanhai Sahi in their own rights and not as maintenance-holders of the late Maharaja. There was no kabuliyat by Parbati Kuer and Charan Kuer in favour of the said Maharaja. The defendants' further case was that after the vesting of the estate of the Maharaja of Chotanagpur in the State of Bihar in accordance with the provisions of the Bihar Land Reforms Act, 1950, the plaintiffs cou1d not get a decree for khas possession, inasmuch as they were admittedly not in possession of the lands in suit on the date of vesting of the said estate. 4. The Special Subordinate Judge, who tried the suit, did not accept the case of the plaintiffs that plaintiff no. 1 had come in possession of the lands in question, after the death of Charan Kuer and held that after vesting of the estate of the Maharaja in the State of Bihar Mosstts. 4. The Special Subordinate Judge, who tried the suit, did not accept the case of the plaintiffs that plaintiff no. 1 had come in possession of the lands in question, after the death of Charan Kuer and held that after vesting of the estate of the Maharaja in the State of Bihar Mosstts. Parbati Kuer and Charan Kuer were in possession of the lands as raiyats under the State of Bihar. The learned Judge further held that neither the plaintiffs nor the Maharaja of Chotanagpur were in khas possession of the lands at the time of the vesting and so they had no subsisting tide to the suit lands and no decree for possession could be passed in favour of the plaintiffs. On the above conclusions the plaintiffs' suit was dismissed. 5. The Additional Judicial Commissioner, who heard the plaintiffs' appeal held that the lands in suit came within the category of privileged land of the landlord as defined under Section 118 of the Chota Nagpur Tenancy Act and those lands were in possession of Charan Kuer as a maintenance-holder till the year 1953 or 1954 by means of a registered kabuliyat (Ext. 12). Thus, the Maharaja or the plaintiffs could not be in possession of those lands so long as Charan Kuer was alive; even then those lands were saved from vesting under Section 6(1) (as) (ii) of the Bihar Land Reforms Act) 1950, (hereinafter referred to as 'the Ac,'). Accordingly, the appellate court held that the plaintiffs had got title to the suit land and they were entitled to recover possession of the same. The appeal was, therefore, allowed and the suit of the plaintiffs was decreed. 6. This second appeal was heard by a learned single Judge of this Court where various submissions were made. It was contended on behalf of the appellants that there being no registered lease by the landlords in favour of Parbati Kuer and Charan Kuer the lands in suit could not be deemed to be in khas possession of the landlords and they were not entitled to any assistance of the provisions of Section 6(1)(a )(ii) of the Act. It was contended on behalf of the appellants that there being no registered lease by the landlords in favour of Parbati Kuer and Charan Kuer the lands in suit could not be deemed to be in khas possession of the landlords and they were not entitled to any assistance of the provisions of Section 6(1)(a )(ii) of the Act. On behalf of the respondents i.e., the plaintiffs, it was, on the other hand, urged that the question as to whether there was registered lease (patta) was not agitated in the courts below and in any case the status of Parbati Kuer and Charan Kuer wag that of a licensee, as they were in possession of the lands in suit only during their lives. Reliance was placed on the decision of (1) Rashmi Kuer V. Mosstt. Hiyawati Kuer; 1968 P.L.J.R. 571. In the said case Mahapatra, J., took the view that a licensee's possession will not be any the worse than a co-sharer's possession as against the licensee vis-a-vis other co-sharers. It was observed by his Lordship that it was unthinkable that the possession of a licensee over a proprietor’s private land would have been thought to be more prejudicial against the proprietor than that of a licensee from year to year or for a term of years, and if the interest created in favour of the defendants (of that case) was that of licensees, the plaintiffs (ex-intermediaries) could also claim the benefit under Section 6 of the Bihar Land Reforms Act. Of course, in the said case there was no question of a maintenance grant in favour of one person or the other. It was contended before the learned single Judge in this case on behalf of the plaintiffs that although in the instant case lands were given to Parbati Kuer and Charan Kuer for maintenance during their lifetime, they should be deemed to be licensees, inasmuch as there was no transfer of interest in their favour. It was contended before the learned single Judge in this case on behalf of the plaintiffs that although in the instant case lands were given to Parbati Kuer and Charan Kuer for maintenance during their lifetime, they should be deemed to be licensees, inasmuch as there was no transfer of interest in their favour. The learned single Judge was, therefore, of the opinion that the question as to whether on the facts of the instant case the Maharaja of Chotanagpur (intermediary) would be deemed to be in khas possession of the land in the suit on the date of vesting of this estate, even though the lands were in possession of Parbati Kuer and Charan Kuer as maintenance-holder, was of considerable importance and did not bear any decision directly on the point. The case was, therefore, referred to a Division Bench and has thus come up before us for disposal. 7. Elaborate arguments were addressed to us on this question by Mr. Lal Narain Sinha appearing for the appellants (defendants) but Mr. J. C. Sinha appearing for the respondents (plaintiffs) stated with can dour that be would not urge the point that the two ladies should be deemed to be licensees and he further stated that this question should never have been argued as it does not arise on the facts and state of law in the present case. It is thus clear that it is not necessary to decide whether the decision of Mahapatra, J. in Rashmi Kuer's case requires consideration for the present purpose. The point arising in that case will be considered when the occasion arises. 8. The question that requires consideration in this case is a short one and it depends upon the true interpretation of Section 6 of the Bihar L8nd Reforms Act, Mr. Lal Narain Sinha had contended that the appellate court has not appreciated the true scope of Section 6 of the Act and he should have held that it did not protect the interest of the plaintiffs in this case and the suit had, therefore, to be dismissed. His submission was that the mere kabuliyat, though registered, was not a registered lease and, therefore, the provisions of Section 6(1)(a)(ii) of the Act did not apply in the present case on the ground that the requirement of a registered lease was not satisfied. 9. His submission was that the mere kabuliyat, though registered, was not a registered lease and, therefore, the provisions of Section 6(1)(a)(ii) of the Act did not apply in the present case on the ground that the requirement of a registered lease was not satisfied. 9. The relevant provisions of Section 6 of the Act are as follows: "6.-(1)On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting, including- (a)(i) proprietors' private lands let out under a lease for a term of years or under a lease from year to year, referred to in Section 116 of the Bihar Tenancy Act, 1885 (8 of 1885), (ii) landlords privileged lands let oat under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less, referred to in Section 43 of the Chota Nagpur Tenancy Act, 1908 (Ben. Act 6 of 1908), (b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by him with his own stock or by his own servants or by hired labour or with hired stock,.................. ... ... ... ... ..." 10. It is not in dispute that the lease in question is not a registered lease but it is oral, though there is a registered acknowledgment of the same, namely, by kabuliyat, (Ext. 12). It was held in the case of (2) Ram Krishna Jha. V. Jainandan Jha A.I.R. 1935 Patna 291 (F. B.) that where a lessee executed registered kabuliyat in favour of the lessors and the lessors accepted it by means of an unregistered amalnamah, no valid. lease was constituted as the kabuliyat executed by the tenant was not a lease nor could the acceptance of the lessor be proved either by the amalnamah or by oral evidence, Mr. Lal Narain Sinha referred to various provisions of the different Acts, namely, to Sections 9, 107 and 117 of the Transfer of Property Act, which may be usefully reproduced here. "9. A transfer of property may be made without writing in every case in which a writing is not expressly required by law." "107. Lal Narain Sinha referred to various provisions of the different Acts, namely, to Sections 9, 107 and 117 of the Transfer of Property Act, which may be usefully reproduced here. "9. A transfer of property may be made without writing in every case in which a writing is not expressly required by law." "107. A lease of immovable property from year to year, or for any term exceeding one year, or "reserving a yearly rent, can be made only by a registered instrument." “117. None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may, by notification published in the Official Gazette, declare all or any of such provisions, to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force. Such notification shall not take effect until the expiry of six months from the date of its publication". It is urged by learned counsel that in order to take protection of Section 6 of the Act, it is not sufficient that there should be only a valid agricultural lease. It is only those which will be registered that fall into the scope of this section. In other words, it must not only be a good lease but it also must be a registered one. To support his contention he has placed reliance on the decision of (3) Loknath Singh and others V. Chhotan Barhi and another: A.I.R. 1946 Patna 22. It was observed in the said case as follows :- "It has long been the common practice in this country where no patta is ordinarily executed, to treat a kabuliyat, accepted by the lessor, as the instrument creating a tenancy. and there is no question that before the passing of the Transfer of Property Act a lease could be effected by an instrument signed by the lessee only and registered in cases where registration was compulsory: 21 M.L.J. 202, 14 C.L.J,614, 39 Cal. 1016 and 55 Cal. 435. These cases further held that a registered kabuliyat signed by the lessee and accepted by the lessor is sufficient to constitute a lease within the meaning of S. 107, T.P. Act. A Full Bench of this Court in 14 Pat. 672 dissented from this view. 1016 and 55 Cal. 435. These cases further held that a registered kabuliyat signed by the lessee and accepted by the lessor is sufficient to constitute a lease within the meaning of S. 107, T.P. Act. A Full Bench of this Court in 14 Pat. 672 dissented from this view. In this case it was held that Section 107 read with Section 105 of the Act clearly implies that the registered instrument must be executed by the lessor who is the transferor and as such registered kabuliyat executed by a lessee in favour of the lessor and accepted by the latter either orally or by means of an unregistered document does not constitute a lease under Section 107, T. P. Act, 1882. This was a case of lease of three villages to which the Transfer of Property Act applied. But the present case is one of agricultural lease to which the Transfer of Property Act has no application. "Section 117 of the Act clearly provides that none of the provisions of Chapter 5 (which includes Sections 105 and 107) apply to leases for agricultural purposes. Khaja Mohammad Noor, J., one of the Judges of the Full Bench, in his judgment stated: 'Agricultural leases are also not affected by the point raised before us inasmuch as they ate not governed by the Transfer of Property Act.' Therefore, the Full Bench decision does not, in my opinion, in any way affect' the authority of the case cited above in regard to agricultural leases. The present lease being an agricultural lease is governed by the Bihar Tenancy Act. There is no provision in the Act which defines a lease or prescribes the mode for the creation of an agricultural lease. Therefore the long standing practice prevailing in this country to treat a kabuliyat, executed by the lessee and accepted by the lessor as the instrument creating a tenancy has not in any way been affected by the Transfer of Property Act. An agricultural lease may be made orally, and if the subsequent acts and conduct of the parties disclose that the lease so created was acted upon, the lease is a valid lease in law: 3 Pat. 349; 55 C. L. J. 312. An agricultural lease may be made orally, and if the subsequent acts and conduct of the parties disclose that the lease so created was acted upon, the lease is a valid lease in law: 3 Pat. 349; 55 C. L. J. 312. If the terms of settlement mutually agreed upon between the landlord and tenant are embodied in a kabuliyat, executed by the lessee and registered in accordance with the provision of Section 17 (1) (d), Registration Act, is accepted by the landlord in the sense of acceptance of rent and grant of receipts to the tenants in acknowledgement of payment of rent, a valid agricultural lease is constituted in law..." 11. It is thus contended by learned counsel that the Bihar Land Reforms Act prescribes the mode, which has been recognised in the said case, as has also been provided by the Transfer of Property Act. The said case does not hold that a good lease need pot be registered. The decision of (3) Loknath's case has been followed in a later case by this Court in (4) Raj Kishore Prasad Jaiswal and others V. Subak Narain Singh and another: A. I. R. 1959 Patna 89. Their Lordship after reviewing a large number of decisions took the view that in case of an agricultural lease a registered kabuliyat, coupled with the acceptance of the same by the landlord was sufficient to constitute a lease in the eye of law. The relevant observations may be usefully quoted here: "But the present case is one of agricultural lease to which the Transfer of Property Act has no application. Section 117 of the Property Act has no application. Section 117 of the Act clearly provides that none of the provisions of Chapter 5 (which includes Sections 105 and 107) apply to leases for agricultural purposes. Khaja Mohammad Noor, J., one of the Judges of the Full Bench, in his judgment stated: 'Agricultural leases are also not affected by the point raised before us, inasmuch as they are not governed by the Transfer of Property Act: Therefore, the Full Bench decision does not, in my opinior1, in any way affect the authority of the cases cited above in regard to agricultural leases. The present lease being an agricultural lease is governed by the Bihar Tenancy Act. The present lease being an agricultural lease is governed by the Bihar Tenancy Act. There is no provision in the Act which defines a lease or prescribes the mode for the creation d an agricultural lease. Therefore the long standing practice prevailing in this country to treat a kabuliyat, executed by the lessee and accepted by the lessor, as the instrument creating a tenancy has not in any way been affected by the Transfer of Property Act. With this, if I may say so, I respectfully agree. It gets full support from the reasoning given in (5) I. L. R. 39 Cal. 1016. It is true that the law as laid down in that case is in general terms covering not only an agricultural lease but also a lease under the Transfer of Property Act and for that reason to the extent to which it applies to a lease under the Transfer of Property Act it has been rightly dissented from in the Full Bench case of Ram (2) Krishna Jha V. Jainandan Jha, ILR 14 Pat. 672 : (AIR 1935 Pat 291). But in taking that view Khaja Mohammad Noor, j, in that case made it clear, as is evident from, the quotation given above, that what he said there was confined to a case of tenancy under Transfer of Property Act. Therefore, to the extent to which the decision reported, in (5) ILR 39 Cal 1016 refers to an agricultural lease, it applies on all fours to the facts of this case. Then this view gets support also from the cases reported in (6) AIR 1939 Pat 594, (7) 14 Ca1. LJ 614, (8) 21 Mad, LJ 202 and (9) AIR 1948 Pat 446. Therefore, I have no hesitation to hold that in the case of an agricultural lease a registered kabuliyat coupled with the acceptance of the same by the landlord is sufficient to constitute a lease in the eye of law. 12. Mr. Lal Narain Sinha has thus urged that to get protection of Section 6(1) (a) (ii) of the Act it must not only be a good lease, which undoubtedly was in the instant case, but the further requirements of the provisions of the said section are wanting, in that, it was not a registered lease and as such the plaintiffs could, not claim the benefit of the same. 13. Mr. 13. Mr. J. C. Sinha, on the other hand, urged that the lease of the agricultural land could be created orally and the registered kabuliyat by a tenant undoubtedly created a valid lease. As I have said earlier, this proposition is not disputed by Mr. Lal Narain Sinha and he says that the argument for the plaintiffs proceeds on a misconception as it assumes that a valid lease is sufficient to get the benefit of Section 6(1)(a)(ii) of the Act. Mr. J. C. Sinha has also relied on the decisions of (3) Loknath Singh and others V. Chhotan Barhi and another. A. I. R. 1946 Patna 22, and Raj Kishore Prasad Jaiswal and others V, Subak Narain Singh and another: A. I. R. 1959 Patna 89. In my opinion, there is no justification for the argument, which has been raised by Mr. J.C. Sinha as those cases do not lay down the question that has to be answered in the present case, namely, whether a valid lease of agricultural land tent amounts to a registered lease. In all the decisions, referred to above the point that fell for consideration was whether the lease of agricultural land can be created orally and if there is a registered kabuliyat by a tenant whether it amounted to a valid lease. In none of the cases the point that now arises arose. It is clear that on a true interpretation of Section 6 (1)(a)(ii) of the Act the lease must be a registered lease if it is for a term exceeding one year and in the present case it is not in controversy that there is only a registered kabuliyat by the tenant and as such it is not sufficient as the requirements of Section 107 have not been satisfied for the simple reason that the instrument of lease has not been accepted by both the lessor and the lessee. For these reasons the argument advanced by Mr. Lal Narain Sinha on behalf of the appellants must be accepted as correct. 14. Mr. For these reasons the argument advanced by Mr. Lal Narain Sinha on behalf of the appellants must be accepted as correct. 14. Mr. J.C. Sinha contended alternatively that the plaintiffs should be considered to be in khas possession of the disputed land being protected by the provisions of Section 6 (1) (b) of the Act which provides for the inclusion of the land used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock, etc. to be in the khas possession of the land of an intermediary on the date of vesting. Section 2(p) of the Act defines "temporary lease." : "temporary lease', in relation to an estate or tenure, means a lease from year to year or for a term of years commonly known as ‘thica', but does not include a lease of mines and minerals comprised in such estate or tenure". It is therefore clear that the defendants were not temporary lessees as thikedars, rather they were tenure• holders. "Tenure" has been defined in Section 2 (q) of the Act which means the interest of a tenure-holder or an under-tenure holder, including a tenure created for the maintenance of any person and commonly known as kharposh, babuana, etc. There is thus much force in the submission of Mr. Lal Narain Sinha that the defendants were tenure-holders. Section 24 of the Act, which provides for payment of compensation not only to the proprietors but also to the tenure-holders of a permanent or resumable tenures, also supports the contention raised by him. Reliance was placed on the decision of (10) Suraj Ahir V. Prithinath Singh: 1963 B.L. J.R. 1, wherein their lordships of the Supreme Court held that khas possession' meant possession of a proprietor or tenure-holder either by cultivating such land himself or with hired stock. The mere fact that the proprietor had the subsisting title to possession over certain land on the date of vesting would not make that land under his 'khas possession.' Mr. Lal Narain Sinha rightly urged that it must be held on the facts of this case that the plaintiffs were not in khas possession of the land and they cannot succeed on the construction of Section 6(1)(a)(ii) or Section 6(1)(b) of the Act. This submission has much substance and must prevail. The contention of Mr. Lal Narain Sinha rightly urged that it must be held on the facts of this case that the plaintiffs were not in khas possession of the land and they cannot succeed on the construction of Section 6(1)(a)(ii) or Section 6(1)(b) of the Act. This submission has much substance and must prevail. The contention of Mr. J. C. Sinha is devoid of merit and is rejected. 15. For the foregoing reasons this appeal must succeed and it is accordingly allowed with costs. The judgment and the decree of the trial court are restored. KANHAIYAJI, J. I agree. Appeal allowed.