State Of Bihar v. Rabatilal Das — 1973 DIGILAW 125 (PAT)

Judgment 1. This appeal by the State of Bihar is directed against the Judgment of the Additional Subordinate Judge, Purnea, by which he has held that the respondent had title to cadastral survey Plot Nos. 102 and 117. measuring 4 biehas 9 kathas 6 dhurs, in village Bhago Pokhar. 2. The case of the respondent was that Plot Nos. 102 and 117 were within Forbesganl Municipality and belonged to the proprietor of Sultanpur Estate. These plots were settled with the father of respondent for agricultural purposes in the year 1934 who came in possession and after his death, the respondent has been coming in possession thereof. The respondent sold away 2 bishas 5 kathas out of these plots and the transferees constructed their houses over the same. The remaining area is still in cultivating possession of the respondent Till the vesting of the zamindari the respondent went on paving rent to the Sultanpur Estate and thereafter to the State of Bihar. In the year 1959, he was served with a notice challenging his right to remain in possession over the said lands and the validity of the receipts granted by the State of Bihar was also denied. The Additional Collector wrongly treated this land as part of the Khas Mahal lands and directed the respondent to vacate the same. Hence the suit giving rise to this appeal. 3. The case of the appellants was that the respondents father was never a raiyat of this land. They also denied that Hot Nos. 102 and 117 ever belonged to the Sultanpur Estate. According to the appellants, these plots alone with others covering an area of 45 bishas and odd were acquired by the East Bengal Railway. The Railway put fences of iron pillars on the boundary. Subsequently, the land was made over to Government on the 19th of March, 1909. Since then the Khas Mahal department of the State was managing the lands. In 1255-56 portions of these lands were temporarily settled with the Harijans, The receipts obtained by the respondent were characterised as fraudulent and as they were issued "without prejudice", they had no legal effect whatsoever. 4. Since then the Khas Mahal department of the State was managing the lands. In 1255-56 portions of these lands were temporarily settled with the Harijans, The receipts obtained by the respondent were characterised as fraudulent and as they were issued "without prejudice", they had no legal effect whatsoever. 4. Three points material for the decision of this appeal are as to whether the respondents father took raivati settlement of the land and thereby acquired raivati interest therein and as to whether these lands formed part of the Khas Mahal lands and as to whether the suit was barred by Sec.35 of the Bihar Land Reforms Act 5. Whatever might have been the position earlier, it is admitted that in the cadastral survey Khatian (Exhibit 9) which was published on 1907, the two plots 102 and 117 were recorded as Ghair Mazrua Malik of the estate of Mr. A.H. Forbes, This entry does a great way to show that on the date of final publication of the Record-of-Rights the above lands were treated as Ghair Mazrua Malik, the proprietor being Mr. A.H. Forbes. The case of the appellants is that these lands along with others were acquired by the East Bengal Railway and then surrendered to the Government of Bengal; but all this happened prior to 1907 and we can safely start with the presumption that in 1909 the lands were treated to be Ghair Mazrua Malik., In the very same khatian a number of other plots were recorded as being in possession of Kaisre Hind. The learned Judge has held that no evidence has been adduced on behalf of the appellants to show that the plots in suit (Nos. 102 and 117) were till the year 1909 treated as being under the Government of Bengal. Further, there is nothing to indicate that the disputed lands were ever in possession of the East Bengal Railway. 6. In order to prove his settlement and possession the respondent examined fourteen witnesses. Out of them P. Ws. 1. 3 and 4 are transferred from the respondent and P. Ws. 9. 12 and 14 have testified to the settlement in favour of the respondents father and his possession over the lands in dispute, P. Ws. 5. 6 and 7 also testified the possession of the respondent. P. Ws. Out of them P. Ws. 1. 3 and 4 are transferred from the respondent and P. Ws. 9. 12 and 14 have testified to the settlement in favour of the respondents father and his possession over the lands in dispute, P. Ws. 5. 6 and 7 also testified the possession of the respondent. P. Ws. 5 and 7 have further stated that the Khas Mahal land was situated south of the suit lands. 7. Mr. Kameshwari Nandan Singh, Counsel appearing for the appellants, strongly urged that the settlement in favour of the father of respondent cannot be taken to be a genuine transaction inasmuch as the name of the respondent was not shown as raivat in the return filed by the ex-landlord. It may be stated that the estate of Mr. Forbes was sold by its trustees and was purchased by Jugilal Kamlapat of Kanpur. The Manager of the transferee estate (P. W. 11) was examined on behalf of the respondent. He stated that the respondent was in possession of the suit lands which were part of the Sultanpur Estate. He also testified to the fact that the respondent was an occupancy raivat. He explained that the name of the respondent was not shown in the return filed by the proprietor as he had been inducted on a portion of the homestead land. In face of this evidence of P. W. 11 who was a highly interested witness to deny the respondent right, there seems to be no force in the argument of learned Counsel that the settlement in favour of the respondents father was not bona fide. 8. To support the evidence of the witnesses, the respondent also filed a large number of receipts (Exhibit 3 series). Exhibits 3 to 3 (n) are rent receipts granted by the landlords and Exhibits 3 (o) to 3 (r) are receipts granted by the State of Bihar. In addition to these, the Karchag (Exhibits 4 series) go to show that portions of rent were offered by the respondent and was accepted by the landlord. It is no doubt true that the receipts granted by the State of Bihar were issued "without prejudice". Learned Counsel for the respondent, however, argued that it was not open to the authorities to have cancelled the receipts granted in favour of the respondent having once recognized him as tenant by accepting rent from him. It is no doubt true that the receipts granted by the State of Bihar were issued "without prejudice". Learned Counsel for the respondent, however, argued that it was not open to the authorities to have cancelled the receipts granted in favour of the respondent having once recognized him as tenant by accepting rent from him. Having gone through the relevant evidence, both oral and documentary, placed before me, it is not possible to take any other view contrary to that taken by the learned trial Judge. 9. Learned Counsel appearing for the State also urged that the suit was barred under Sec.35 of the Land Reforms Act On the findings arrived at by the Court below with which we have already concurred, there does not seem to be any substance in the argument of learned Counsel. Sec.35 only bars a suit which relates to an entry in or omission from the compensation assessment roll or in respect of any order passed under Chapters II to VI or concerning any other matter which might have been the subject of any application made under the said Chapters of the Land Reforms Act. In view of the fact that the lands in dispute were settled with the father of the respondent as early as in the year 1934 and he was out in possession, and thereafter his son, the respondent, has been coming in possession, and paying rent, Sec.35 is no bar to the present suit. 10. To conclude, we agree with the trial Judge that the respondent has acquired occupancy grant in the disputed lands and the appellants have no right to interfere with the peaceful possession of the respondent over those lands. 11. In the result, the appeal is dismissed but there will be no order for costs of this Court.