Haripada Mahto v. State of Bihar — 1988 DIGILAW 21 (PAT)

Judgment B.P. Singa. J. These two writ applications involve common questions and hence they have been heard together. Both the writ applications are being disposed of by this judgment. 2. In C.W.J.C. 393/81 (R) the petitioners are Haripado Mahto and Sri Pado Mahto both sons of late Puran Mahto, Respondents 5 and 6 in the aforesaid writ application are Manbadh Ohdar and Ram Pado Ohadar Respondent 1 is the State of Bihar and respondents 2 to 4 are the authorities under the Chotanagpur Tenancy Act. By the aforesaid writ petition, the petitioners have prayed for quashing of the order passed by the Special Officer, Scheduled Area Regulation, Ranchi, dated 6.3.1974 passed in Case No. 189/559 of 1971, Annexure-6. They have also prayed for quashing of the appellate order passed by the Additional District Magistrate, Ranchi, in Case No. 725 of 1976 dated 28.7.1978, Annexure-7, as also the revisional order passed by the Commissioner, South Chotanagpur Division, in Ranchi Revision No. 236/18 dated 6.2.1981 Annexure-8. The order for restoration of the lands in• question to respondents 5 and 6 passed by the Special Officer has been affirmed in appeal by the Additional District Magistrate and in revision by the Commissioner South Chotanagpur Division. 3. The petitioners' case is that one La. Singh Ohdar was the grand-father of respondents 5 and 6 herein. He was Kurmi Mahto by caste and was the landlord in respect of the lands in-question. By registered deed dated 18.6.910, Annexure 2, the said Lal Singh Ohdar settled the lands in-question with Raidas Mahto predecessor in-interest of the petitioners, after taking a salami of Rs.60/- and annual rental of 12 annas. According to the petitioners, the settlement was of raiyati interest and was for the benefit of Putra-putradik meaning thereby for the benefit of the heirs of the tenant. According to the petitioners the settlement was permanent in nature and was heritable. Pursuant to the aforesaid settlement of the year 1910, the predecessors in interest of the petitioners came in possession of the lands and, there after, the petitioners came in possession of the lands. The case of the petitioners was that the village note of village Badalu where the lands are situate shows that even a sikmidar acquired occupancy rights if he was in possession of the lands as sikmidar for more than 12 years. The case of the petitioners was that the village note of village Badalu where the lands are situate shows that even a sikmidar acquired occupancy rights if he was in possession of the lands as sikmidar for more than 12 years. According to the petitioners, in the R.S. record of rights, their father was wrongly shown as sikmidar because in view of village custom, he had acquired occupancy rights and, therefore, should have been shown as raiyat. However, the record of rights did show that he was a sikmidar having occupancy rights. The respondents have challenged the averments made in the writ application and have urged that Lal Singh Ohdar belonged to Scheduled Tribe. He was not a landlord but was the recorded tenant in respect of the lands in-question. Consequently even in the deed of settlement of the year 1910 the petitioners ancestors only acquired the rights of a sikmidar, that is an under-raiyat. There was no village custom regarding a sikmidar acquiring occupancy rights. It was, therefore, contended that there was transfer of interest by the recorded tenant in the lands in question and that under section 71 A of the Chotanagpur Tenancy Act, respondents 5 and 6 were entitled to the restoration of the lands transferred by Lal Singh Ohdar. 4. In C.W.J.C. 915/81 (R), the petitioner is Dasrath Mahto. Respondents 4 and 5 are the same as in C.W.J.C. 393/81 (R). In this case also it was the case of the petitioner that the lands in. question belonged to Lal Singh Ohdar who did not belong to the scheduled tribe. This Lal Singh Ohdar was the grand-father of respondents 4 and 5 and was the landlord. The aforesaid lands were acquired by the father of the petitioner and his uncles in the years 1944-45 by way of raiyati settlements executed by the father of respondent nos. 4 and 5 on payment of salami and fixation of rent. In this case also it was pleaded that in village Badalu a sikmidar acquire occupancy rights over the sikmi lands if that sikmidar remains in possession thereof for more then 12 years. The right so created was heritable and transferable. The respondents in this ease as well challenged the claim of the petitioner on substantially the same grounds as in the connected writ petition. The right so created was heritable and transferable. The respondents in this ease as well challenged the claim of the petitioner on substantially the same grounds as in the connected writ petition. At the hearing of these two writ applications, common arguments were advanced since the issues involved are the game in both the writ applications. 5. Respondent 4 and 5 herein filed two applications under section 71A of the Chotanagpur Tenancy Act, (herein after referred to as the Act) before the Special Officer, who by his order dated 6.3.1974 - allowed those two application and granted restoration of the lauds in-question in favour of respondent 4 and 5. An appeal was preferred against the aforesaid orders in both the cases and ultimately the Additional District Magistrate, Ranchi, remanded the case to the Special Officer for further hearing on two points, namely, whether We applicants were the members of any scheduled tribe and secondly whether the opposite parties (Petitioners) could be evicted from the sikmi lands in question or whether they had acquired occupancy rights. 6. After remand, the evidence was recorded by the Special Officer and again by order dated 31.5.1976, the applications under section 71A of the Act, filed by respondents 4 and 5 were allowed by separate but similar Orders. Two appeals were preferred before the Additional District Magistrate, Ranchi, and both the appeals were dismissed by orders dated 28.7.1978 by separate but similar orders. Thereafter, two revisions were preferred before the Commissioner, South Chotanagpur Division. The Commissioner by a common order dated 6th March, 1981 dismissed both the revision applications. 7. On behalf of the petitioners, it was urged by Mr. Debi Prasad, their learned counsel that respondents 4 and 5 were 'baraiks' and under the Bihar Scheduled Areas Regulation 1969, ‘baraiks’ are not included in the list of Scheduled tribes. Item no. 10 of the list mentions 'Chik baraik' as a Scheduled tribe. He referred to various unreported decisions of this Court in which it has been held that there is a difference in between 'baraik' and ‘chik baraik’. There is also another community known as 'chiks.' According to him, it is well settled that neither 'chiks' nor 'baraiks' belong to the Scheduled tribe. It is only 'chik baraik' which is included in the list of Scheduled tribes. The authorities under the Act, were, therefore in error in holding that respondent nos. There is also another community known as 'chiks.' According to him, it is well settled that neither 'chiks' nor 'baraiks' belong to the Scheduled tribe. It is only 'chik baraik' which is included in the list of Scheduled tribes. The authorities under the Act, were, therefore in error in holding that respondent nos. 4 and 5 and their ancestors belong to the scheduled tribes. The submission is that if they were not 'chik baraiks' and therefore, did not belong to any of the scheduled tribes, the application under section 71A of the Act, was nut maintainable at their instance. On the other hand, it is the respondents that the contended by authorities have not held that 'baraiks' are scheduled tribe. What has been held is that respondents 4 & 5, and their ancestors are really 'chik baraiks' though they have been mentioned as, ‘baraiks’ in survey khatians etc. 8. From the order of the Special Officer, it appears that evidence was examined before him to establish that respondents 4 and 5 were 'chik baraiks' and was there fore, members of a scheduled tribe. Before Special officer, certain precedents were also cited to establish that in many cases 'baraiks' had been really found to be ‘Chik baraiks.' It appears from the materials placed on record that very often 'chik baraiks' describe themselves in such a manner so as to gain some social status since 'baraiks' are considered to belong to the higher strata of the society, unlike 'chik baraiks.' A perusal of the order of the Special officer, disclose that be considered the evidence produced before him and the precedents cited and came to the conclusion that respondents 4 and 5 and their ancestors were 'chik baraiks' even though they described themselves as cbaraiks'. This finding of fact has been affirmed by the Additional District Magistrate, the appellate authority. The revisional authority, namely the Commissioner has also affirmed this finding. It was right contended on behalf of the relponden-3 that it being a pure finding of fact and based on the materials placed before the authorities, such a finding cannot be interfered with in the exercise of jurisdiction under Articles 226 and 227 of the constitution of India since there is no error apparent and the finding is based on materials on records. In this view of the matter, I do not find any reason to interfere with the finding of fact concurrently recorded by the authorities under the Act, that respondent’s nos. 4 and 5 are members of a scheduled tribe and as such an application under section 71A of the Act, for restoration of lands at their instance was maintainable. 9. The next point urged on behalf of the petitioners was that section 71A of the Act, is attracted only when there is a transfer of land belonging to a raiyat who is a member of the scheduled tribe in contravention of section 46 or any other provision of the Act. In the instant case, the registered document of the year 1910 did not evidence a transfer. The said document was merely a deed of settlement where by the landlord settled certain lands in favour of tenants. He described himself as Ohdar, meaning thereby a landlord. There was, therefore, no violation of section 46 of the Act, or of any other provision of the Act. It was submitted that under section 4 of the Act, a tenant includes an under tenant and the registered document executed in the year 1910 did not have the effect of transferring any land but merely created a tenancy in favour of the petitioners. On the basis of the aforesaid plea, it was urged that Lal Singh Ohdar was the landlord and the ancestor of the petitioners became his tenants. To such a case, section 71A of the Act, was not attracted. On behalf of the respondents, it was urged that the petitioners cannot now be allowed to urge that they were tenants and not under-tenants. In the proceedings under the Act, they always claimed to be sikmidars. Even in paragraph 6 of the writ petition filed by them before this court, they have pleaded that a sikmidar acquired occupancy right in view of village custom and) therefore; the petitioners also acquired occupancy rights in accordance with the village custom. Their claim was that they were sikmidars but subsequently became raiyats in accordance with the village custom. They cannot now be permitted to urge that Lal Singh Ohdar was the landlord and the petitioners were tenants under him. It was then submitted that transfer within the meaning section 71A of the Act, had to be given a wide meaning. Their claim was that they were sikmidars but subsequently became raiyats in accordance with the village custom. They cannot now be permitted to urge that Lal Singh Ohdar was the landlord and the petitioners were tenants under him. It was then submitted that transfer within the meaning section 71A of the Act, had to be given a wide meaning. In the instant case, since a raiyat created an interest in favour of an under-raiyat for a period of over five years, the same was contrary to section 46 (1) of the Act. 10. It has not been disputed before me that Lal Singh Ohdar was not a tenure holder and that he was recorded as a tenant in the revenue records. The mere fact that he described himself as a 'landlord' or as an ‘Ohdar’ did not confer that status upon him. The petitioner also claims to be sikmidars. It must, therefore, be held that Lal Singh Ohdar was never a landlord in the sense of being a tenure holder' He was himself a recorded tenant and, therefore, the tenancy created by him in favour of the petitioners or their ancestors was in the nature of an under tenancy under which the petitioners become under raiyats or sikmidars. 11. It is necessary to refer to certain provisions of the Act, before considering the question as to whether by reason of such settlement any provision of the Act, was violated. Section 3 (14) defines 'landlord' as follows:- "landlord mean a person immediately under whom a tenant holds, and includes the Government" Section 3 (XXVI) defines 'tenant' which means as follows:- "tenant means a person who holds land under another person and is or but for a special contract would be liable to pay rent far that land to that person." Section 4 of the Act, provides as follows:- "Classes of tenants; There shall be, for the purposes of this Act, the following classes of tenants namely:- (1) tenure-holders, including under-tenure-holders; (2) raiyat, namely:- (a) occupancy-raiyats, that is to say, raiyats having a right of occupancy in the land held by them. (b) non-occupancy raiyats that is to say, raiyats not having a right of occupancy, and (c) raiyats having khunt-katti rights: (3) under-raiyats, that is to say, tenants holding, whether immediately or mediately, under raiyats; and (4) Mundari Khunt-Kattidars." Two other sections which require to be noticed at this stage are section 44 and 46. Section 44 provides as follows:- "44 ............ Raiyat entitled to a lease - Every ‘raiyat’ shall be entitled to receive from his landlord a lease containing the following particulars, namely:- (a) the quantity and boundaries of the land comprised in his holding and where fields have been numbered in a Government survey the number of each field: (b) the amount of yearly rent payable for such land: (c) the instalments in which the rent is to be paid: (d) if the rent is payable wholly or partially in kind, the proportion or quantity of produce to be delivered, and the time and manner of delivery: and (e) any special conditions of the lease." Relevant part of section 46 is as follows:- "46 ......Restrictions on transfer of their right by 'raiyat':- (1) No transfer by a raiyat of his right in his holding or any portion thereof:- (a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible even exceed five years, or (b) by sale, gift or any other contract or agreement, shall be valid to any extent: Provided that a 'raiyat' may enter into a 'bhugut bundha' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the Bihar and Orissa co-operative Societies Act, 1935 (B & O Act, VI of 1935) for any period not exceeding fifteen years," The definition of a 'landlord' makes it quite clear that it means a person immediately under whom a tenant holds and includes the Government Similarly a tenant is a person who holds land under another person and is, or but for a special contract would be liable to payment for that land to that person. The definitions of landlord and tenant do not refer to any tenure holder or a raiyat. The definitions of landlord and tenant do not refer to any tenure holder or a raiyat. Thus in the case of a tenure holder under whom tenant bolds, the tenure-holder would be considered to be the landlord and the tenant who holds land under him and pays rent to him will be considered to be a tenant. Similarly if a tenant creates an under-tenancy in favour of an under-tenant, he ma y be the landlord of the under-tenant and in that sense an under• tenant may be his tenant. It was, therefore, submitted on behalf of the respondents that the words used in the deed of settlement denoting Lal Singh Ohdar as landlord must be understood in this context. Even if Lal Singh Ohdar was himself raiyat, he can be considered to be the landlord of the petitioners in whom he created rights of an under raiyat. So understood there is nothing in the registered deed which can establish that Lal Singh Ohdar was really a tenure holder/and a landlord in that sense. However, in view of the fact that Lal Singh Ohdar was a recorded tenant and was described as such in the revenue records, it makes no difference whether he described himself as a landlord or anything else. Since he was a tenant or a raiyat, his tenant can only be an under-tenant or an under raiyat. 12. Section 4 refers to the classes of tenants which includes even a tenure-holder as a tenant also includes a raiyat as also under-raiyats, that is, tenant, holding, whether immediately or mediately, under raiyats. It is true that both raiyats and under-raiyats are classes of tenants. But one cannot lost right of the fact that there is a distinction between the nature' of tenancy which a raiyat enjoys and which an under raiyat enjoys. In this context, section 46 assumes importance Section 46 provides that no transfer by raiyat of his right in his holding by mortgage or lease for any period exceeding five years shall be valid. The instant case is not a case of mortgage. According to the respondents, it is a case of lease for a period exceeding five years since the registered document itself mentions that the lease was for the benefit of the heirs of the under-raiyats. The instant case is not a case of mortgage. According to the respondents, it is a case of lease for a period exceeding five years since the registered document itself mentions that the lease was for the benefit of the heirs of the under-raiyats. It is to be noticed that the term 'lease' used in section 46 of the Act, is not used in the same sense as understood under the Transfer of Property Act. Under the Chotanagpur Tenancy Act, a lease means a document which creates a right of a tenant by whatever name called, whether a deed of settlement or a hukumnama or by any other name. This becomes clear if one refers to the provision of section 44 of the Act. Section 44 provides that every raiyat shall be entitled to receive from his land lord a lease containing the particulars specified in the section. Thus, under the Act, a lease clearly means a document containing the terms and conditions of the settlement made in favour of raiyat by his landlord. The word, 'lease' in section 46 is used in the same sense as in section 44 of the Act. Both these sections find place in Chapter VIII of the Act, which relates to lease and transfers of holdings and tenure. So understood, the settlement amounted to a lease within the meaning of section 46 of the Act. Since the settlement made in favour of the petitioners gave to them right in the holding of the settler for a period exceeding five years, the same violated the provisions of section 46 (1) (a) of the Act, There was, therefore, a transfer within the meaning of section 71A of the Act, and respondents 4 and 5 being members of scheduled tribe and being the successors in interest of the recorded raiyat, were entitled to maintain an application under section 7A of the Act. The same view has been taken by this court in a judgment dated 14th of July, 1987 in C.W.J.C. No. 696/82 (R). 13. It was then submitted on behalf of the petitioners that sikmi rights also be came heritable by village custom. It was submitted that only in the absence of custom, sikmi rights are not heritable. The same view has been taken by this court in a judgment dated 14th of July, 1987 in C.W.J.C. No. 696/82 (R). 13. It was then submitted on behalf of the petitioners that sikmi rights also be came heritable by village custom. It was submitted that only in the absence of custom, sikmi rights are not heritable. In the instant case, reliance was placed upon the village note in respect of village Badalu and it was contended that the said village note establishes the custom that sikmidar acquires occupancy right if he remains in possession of the sikmi lands for a period over 12 years. It was alternatively urged that if it is held that the skimi-tenancy was not heritable then the petitioners who continued in possession of the lands in-question continued only as trespassers after the death of their father. Their possession, therefore, was that of a trespasser and there was no question of any transfer of interest in land. In such a case as well, section 71A of the Act, would have no application and the respondents can only seek their remedy by way of a suit. On behalf of the respondents it was urged that there was no village custom to the defect that a sikmidar who had been in possession of the lands as a sikmidar for over 12 years acquired occupancy rights which were herietable. It was further submitted that the petitioner deliberately did not file their reply before the Special Officer to the application filed by the respondents under section 71A of the Act, The reply filed by them was deliberately withheld in view of the fact that no custom whatsoever was pleaded in the reply. The case was initially remanded by the appellate authority only on two questions, namely whether the applicants were members of any scheduled tribe, and secondly whether a sikmidar can be ejected or whether he acquired any occupancy right. The remand being on these two questions alone, the petitioners cannot be permitted to widen the scope of the enquiry after remand. The case was initially remanded by the appellate authority only on two questions, namely whether the applicants were members of any scheduled tribe, and secondly whether a sikmidar can be ejected or whether he acquired any occupancy right. The remand being on these two questions alone, the petitioners cannot be permitted to widen the scope of the enquiry after remand. Though the submission urged on behalf of respondents is not without force since some evidence was led before the authorities after remand, I do not consider it to be in the interest of justice to shutout such evidence from consideration on any technical plea, and more so because even on the basis of the material, placed before the authorities, the petitioners have failed to establish any such custom. 14 This brings us to the custom pleaded by the petitioners. Annexure-3 to the writ application refers to the village-note. The village note is to the following effect :- "there is no tenant at fixed rent Sikmi tenants acquire occupancy right since they covert of land to korkar and they become as good as occupancy right when they are in possession of raiyati land or a dar-raiyat for over 12 years or that they cannot be evicted therefrom." It will appear from the aforesaid village note that there is no mention therein about heritability of the tenancy. Learned counsel for the respondents vehemently urged that even if the village note is taken to be custom, it is silent on the question of heritability. More-ever, it is well settled that a custom must be specifically pleaded and established. In the instant case, evidence adduced by the petitioners in respect of such custom has not been accepted by the authorities under the Act. It has been found as a fact that there was no such village custom which converted a sikmi-tenant into a permanent tenant, having occupancy rights of heritable nature. There is, therefore, no justification for the plea that the sikmi-rights got converted into occupancy rights and became heritable after 12 years in accordance with village custom. Since no such custom has been established, section 76 of the Act, which saved customs not in-consistent with the provisions of the Act, cannot come to the aid of the petitioners. 15. The position in law as to heritability of occupancy rights is well settled. Since no such custom has been established, section 76 of the Act, which saved customs not in-consistent with the provisions of the Act, cannot come to the aid of the petitioners. 15. The position in law as to heritability of occupancy rights is well settled. Referring to various authorities on the question, a Division Bench of this court held in Johan Oraon (Ekka) and another’s Vs. Sitaram Sao (Bhagat) and others as follows:- “.....It is well settled that the interest of an under-raiyat with occupancy status is not heritable under the law it may be heritable by custom. In this cue, the plaintiffs specifically pleaded that the dar raiyati interest in the locality lasts till the life time of the dar raiyat and not further. On the other hand, the defendants controverter this allegation and alleged that the right of a dar-raiyat is heritable by custom of the village. Both the parties’ adduced evidence and both the Courts below have concurrently held that the custom of heritability has not been established. It must be held therefore that the dar-raiyati interest with occupancy right is not heritable in the village in-question..." In the instant case as well, the concurrent finding of tact on this point is against the petitioner and I find no good reason to interfere with the concurrent findings of fact. It must therefore, be held that the petitioners have filed to establish that in the village in-question there was any custom whereby a sikmidar acquired occupancy right of heritable nature after he remained in possession of the lands in question as a Sikmidar for over 12 years. 16. Last contention urged on behalf of the petitioners was that even if it is held that the petitioners did not acquire any heritable right, they continued in possession as trespassers and hence should be evicted from the lands in question only by the ordinary legal procedure of filing a suit. The plea that the trespassers acquired title by adverse possession cannot be upheld. The possession of the petitioners was as ways that of a sikmidar and, therefore, that possession was not adverse to that of the recorded raiyat since as sikmidar they held under the raiyat. Moreover this plea of adverse possession by reason of the petitioners being trespassers was never urged before the authorities under the Act. The possession of the petitioners was as ways that of a sikmidar and, therefore, that possession was not adverse to that of the recorded raiyat since as sikmidar they held under the raiyat. Moreover this plea of adverse possession by reason of the petitioners being trespassers was never urged before the authorities under the Act. The question whether the petitioners have perfected their title by adverse possession, is a question of fact and cannot be gone into for the first time in a proceeding under Article 226 and 227 of the Constitution of India In any event, the legal position is well settled by a Full Bench judgment of this court reported in Shaikh Bande Vs, Jethua Pahan and others which was also a case under the Chotanagpur Tenancy Act, It was held that even if a tenant came in possession of lands, on the basis of an invalid lease, his possession my be wrongful, but, if he paid rent which was accepted by the lessor then his possession ceases to be adverse and relationship of landlord and tenant comes into existence. In the instant case, the petitioners do not say that they did not pay rent to the landlord, meaning thereby the recorded raiyats. In this state of evidence on record, it cannot be said that the petitioners acquired title by adverse possession. In this view of the matter, the third proviso to section 71A of the Act, has no application and, therefore the petitioners cannot claim any compensation in terms of the aforesaid proviso. Moreover this question does not appear to have been raised before any of the authorities under the Act, nor has this contention been raised in the writ application. However in view of my finding above, the contention of the petitioners that they are entitled to compensation under the third proviso to section 71A must be rejected. 17. It must therefore, be held that Lal Singh Ohdar belonged to a scheduled tribe namely 'chik baraik'. He was the recorded tenant in respect of the lands in-question. The transfer by him by way of settlement in favour of the petitioners in the two writ applications amounted to a transfer within the meaning of section 46 of the Act, and the transfer being for a period of more than five years, was in breach of the provisions of section 46 (1) (a) of the Act. The transfer by him by way of settlement in favour of the petitioners in the two writ applications amounted to a transfer within the meaning of section 46 of the Act, and the transfer being for a period of more than five years, was in breach of the provisions of section 46 (1) (a) of the Act. The respondents 4 and 5 were, therefore, entitled in law to maintain a claim under section 71A of the Act, for restoration of these lands. The petitioners in both the cases have failed to establish that there was any custom by which sikmidars acquired occupancy right of heritable nature if they remained in possession of the lands in question as sikmidar for more than 12 years. The village-note even if it be taken to be recital of a custom, does not mention that the occupancy right acquired by the sikmidar was heritable. Thus, the petitioners by virtue of the settlements made in their favour remained sikmidar or under raiyats and even if the original lessee acquired occupancy rights that could not be inherited by his heirs. Consequently to a claim under section 71A of the Act, made by respondents 4 and 5 the petitioners have no valid defence The authorities under the Act, have, therefore, rightly held that the petitioners are liable to restore the lands to respondents 4 and 5. In the result, these two writ applications are dismissed, but in the circumstances of the case, there shall be no order as to costs. Applications dismissed.