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2002 DIGILAW 1260 (JHR)

Haradhan Dutta v. State Of Bihar

2002-12-13

M.Y.EQBAL

body2002
JUDGMENT M.Y. Eqbal, J. 1. This second appeal by the plaintiffs-appellants is directed against the judgment and decree dated 9.5.1988 passed by 7th Additional District Judge, Dhanbad in Title Appeal No. 88/3/44 of 1974/76/87 whereby he has reversed the judgment and decree dated 24.7.1974 passed by the Munsif, 2nd Court, Dhanbad, in Title Suit No. 104/70 and dismissed the suit. 2. The plaintiffs-appellants filed the aforementioned suit for declaration of title and further for a declaration that the property of Schedule-A of the plaint has not vested in the State of Bihar. Schedule-A property comprised of two plots, namely, plot Nos. 667 and 668 of Khata No. 207 situated in village- Pindrahat, P.S. Nirsha, District-Dhanbad. These plots are the tank and embankment. Plaintiffs case is that these plots were the khas property of the Ex-landlord who settled it with the plaintiffs in raiyati right in the year 1951 B.S. i.e. 1944 on annual rent of Rs. 3 only. The plaintiffs alleged to have taken settlement of the tank for the purpose of irrigation of the lands near the tank and for utilizing its silt as manure of his paddy land for growing vegetables on its all. The plaintiffs claim to have got oral settlement of these plots by delivery of possession in acceptance of rent as the plaintiffs were Bikhsa- Bhai of the ex-landlord and therefore verbal settlement was made. It is contended by the plaintiffs that they were all along in possession of the tank since settlement by claiming permanent raiyati right. The respondent-State illegally tried to auction the tank to the general public which was protested by the plaintiffs and finally the suit was filed. 3. The defendants-respondents contested the suit by filing written statement denying and disputing the settlement of the tank by the ex-landlord in favour of the plaintiffs. The story of verbal settlement was made in order to create false claim over the tank. The respondent-State also denied payment of rent to the ex- landlord and to the State of Bihar. The defendants further case is that the auction of the Bandh was held in 1970 and as per the government instruction notice was issued to the Mukhia, Pindrahat Gram Panchayat and the Secretary Pindrahat Multipurpose Society to give their consent if they intended to take settlement of the Bandh. Accordingly the offer of the Mukhia was accepted and the tank (Bandh) was settled. Accordingly the offer of the Mukhia was accepted and the tank (Bandh) was settled. According to the defendants the State of Bihar was and is in possession of the tank and the Anchal Ad Sub-section hikari had every right to settle it for fishery purposes. 4. The Trial Court, after considering the evidences both oral and documentary adduced by the parties, decreed the suit. The defendant-State filed Title Appeal No. 88/3/44 of 1974-76-87 which was Sub-sectionallowed by, the Sub-Judge-I, Dhanbad vide judgment dated 21.5.1976. Thereafter the plaintiffs-respondents filed appeal before the Ranchi Bench of the Patna High Court being FA No. 139/76. The said appeal was allowed and the case was remanded back to the First Appellate Court for re-hearing. After remand the Lower Appellate Court, after considering the entire facts and circumstances of the case and re-appreciating the entire evidence, finally passed the im- pugned judgment and thereby allowed the appeal and set aside the judgment and decree passed by the Trial Court. Hence this appeal. 5. On 5.1.1989 this second appeal was admitted for hearing on the following substantial questions of law : "Whether in the facts and circumstances of the case the Court below could have drawn an inference that the settlement of the tank with the embankment was not for agricultural purpose and was an encumbrance which was wiped out on the vesting of the land in the State of Bihar under the Bihar Land Reforms Act." 6. Mr. N.K. Prasad, learned Sr. Counsel appearing for the plaintiffs- appellants assailed the impugned judgment and decree passed by the lower appellate Court as being illegal and contrary to the facts and evidences on record. Learned counsel submitted that despite direction given by the High Court in the order of remand the appellate Court neither considered nor discussed the entire evidence and allowed the appeal on extraneous considerations. Learned counsel submitted that the lower appellate Court has committed error of law in so far as it disbelieved the oral settlement of the tank in question. Learned counsel submitted that the settlement of tank orally for agricultural purposes is permissible in law. Learned counsel relied upon a decision of the Patna High Court in the case of Sardamoni Devi v. State of Bihar, reported in AIR 1979 Pat 106 . 7. Mr. Learned counsel submitted that the settlement of tank orally for agricultural purposes is permissible in law. Learned counsel relied upon a decision of the Patna High Court in the case of Sardamoni Devi v. State of Bihar, reported in AIR 1979 Pat 106 . 7. Mr. Shamim Akhtar, learned Standing Counsel No. II, on the other hand, submitted that the lower appellate Court after remand of the appeal has reconsidered and discussed the entire evidence and then came to a finding of facts disbelieving the case of the plaintiffs regarding oral settlement. According to the learned counsel the findings of facts recorded by the lower appellate Court needs no interference in second appeal. Learned counsel submitted that admittedly there is no written instrument about the settlement of the tank and oral settlement of the tank is not permissible in law. Learned counsel relied upon a decision of the Supreme Court in the case of Ananda Bahera and Anr. v. State of Orissa and Anr., reported in AIR 1956 SC 17 and in the case of Sobharam Mahato v. Raja Mahaton and Anr., reported in AIR 1957 Pat 278 . 8. From perusal of the judgment passed by the lower appellate Court it appears that after appreciation of the evidences of all the witnesses it came to a finding that the plaintiffs-appellants failed to prove the settlement of the tank or long possession thereof. The lower appellate Court is further of the view that had there been a real settlement of the tank, there must have been a registered document and in absence of that the plea of oral settlement cannot be accepted. 9. The main thrust of Mr. N.K. Prasad, counsel for the appellants is that the settlement of tank and its embankment was granted by the ex-landlord in favour of the plaintiffs for agriculture purposes and, therefore, oral settlement is permissible in law. Learned counsel put heavy reliance on the ratio decided in Shardamoni Devis case (supra). 10. The Bihar Land Reforms Act, 1950 was enacted for the purpose of transference of all interests of the proprietors and tenure-holders in favour of the State. Section 3 of the said Act empowers the State Government to declare, by notification, that the estates or tenures of a proprietor or tenure-holder have passed to and become vested in the State. 10. The Bihar Land Reforms Act, 1950 was enacted for the purpose of transference of all interests of the proprietors and tenure-holders in favour of the State. Section 3 of the said Act empowers the State Government to declare, by notification, that the estates or tenures of a proprietor or tenure-holder have passed to and become vested in the State. Section 4 of the said Act lays down provisions regarding consequences of vesting of the an estate and tenure. The relevant portion of Section 4 is quoted hereinbelow : 4. "Consequences of the vesting of an estate or tenure in the State.-- Notwithstanding anything contained in any other law for the time being in force or any contact and notwithstanding any non-compliance or irregular compliance of the provisions of Section 3.3-A and 3-B except the provisions of Sub-section (1) of Section 3 and Sub-section (1) of Section 3-A on the publication of the notification under Sub-section (1), of Section 3 or Sub-section (1) or Sub- section (2) of Section 3-A, the following consequences shall ensure and shall be deemed always to have ensued, namely : (a). Such estate or tenure including the interests of the proprietor or tenure-holder in any building or part of building comprised in such estate or tenure and primarily as office or cutchery for the collection of rent of such estate or tenure, and his interests in trees, forests, fishereies, jalkars, hate, bazaars, mela and ferries and all other sairati interests, as also his interest in all sub-soil including any rights in mines and minerals whether discovered or undiscovered or whether been worked or not, inclusive of such rights of a lessee of mines and minerals comprised in such estate or tenure (other than the interests of raiyats) shall with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure-holder shall cease to have any interests in such estate or other than the interests expressly saved by or under the provisions of this Act." 11. From bare perusal of the aforesaid provision it is clear that all proprietary interests including tank, jalkar and fishery stood vested in the State save and except the raiyati interests of a raiyat. 12. In the instant case the plaintiffs-appellants claim raiyati interest over the tank and its embankment on the basis of oral settlement. From bare perusal of the aforesaid provision it is clear that all proprietary interests including tank, jalkar and fishery stood vested in the State save and except the raiyati interests of a raiyat. 12. In the instant case the plaintiffs-appellants claim raiyati interest over the tank and its embankment on the basis of oral settlement. Now the question, therefore, which falls for consideration is whether real intendment and purport of the alleged settlement granted by the ex-landlord in favour of the plaintiffs was for agricultural purpose. Admittedly plaintiffs, case is that these two plots which are tank and its embankment were orally settled by the ex-landlord in their favour. It is not the case of the plaintiffs that along with these two plots some agricultural land was also taken into settlement from the ex- landlord. In the case of Sardamoni Devi (supra), considering a case of like nature, their Lordships observed : "I now take up the question whether plots 5242 and 5243 could be the subject-matter of an agricultural lease. I may mention here that both the pattas (Exts. 3 and 3/A) are unregistered ones and they will be in accordance with law only if they are for the agricultural purposes under Section 117 of the Transfer of Property Act. Plot No. 5242 has been described in the lease (Ext. 3) as "bandh ail" which is a local term for embankment, Plot No. 5243 has been described as "bandh", i.e. tank. The area of the tank portion is 3.84 acres and that of the embankment 1.62 acres. Learned counsel for the appellant conceded in the very beginning that a tank cannot be the subject-matter of agricultural lease, but he contended that if the tank appertains to some land which can be the subject- matter of an agricultural lease, and if the tank and the land both have been settled together then such a settlement would be valid in the eye of law. It has, therefore, to be considered whether the tank portion could be said to appertain to the embankment. It has, therefore, to be considered whether the tank portion could be said to appertain to the embankment. An authority has been cited (which will be discussed hereafter) to show that if the embankment is just an embankment, only to contain the tank, then the settlement of that embankment cannot be taken to be a settlement for agricultural purpose; but if the area of the embankment is something more than just the bank, i.e. the area is big enough for cultivation it can be the subject-matter of an agricultural lease, and in that case, the tank would also come within the ambit of that lease." 13. It will not be out of place to mention here that in Sardamoni Devis case the ex-landlord granted settlement of not only the tank and embankment but other agricultural land also simultaneously and the settlee built a number of houses on the embankment with the passage of time and buildings were erected with the permission of the government. In the light of those facts their Lordships held that the settlement shall be deemed for agriculture purpose and such settlement can be made orally also. 14. In the instant case, as noticed above, only two plots i.e. tank and its embankment allegedly were settled orally which is called bandh. The plaintiffs witnesses have stated that the plaintiffs used to rear fish from the tank besides using its water for agriculture purposes. 15. In the case of Sobharam (supra) a similar question came for consideration before a Division Bench of the Patna High Court where their Lordships observed as under : "A lease cannot be called a lease for agricultural purposes, unless the primary object of the lease is cultivation, or agriculture. A lease of a tank, which does not appertain to an agricultural holding is not an agricultural lease. The fact that the surrounding lands round about, or near the tank belong to the lessee, and, they are being irrigated from the tank will not make the lease of the tank for the purposes of agriculture, the true test in such cases is the primary object "of the lease namely whether it is a lease of the tank, or a lease of the surrounding lands for the purposes of agriculture with the tank within it. Where therefore, the principal, and only parcel of the demise is a tank and it is not leased out together with some land apportenant to it, or surrounding it, and it is not a part of any agricultural holding and the lease does not mention that the tank was being leased out for irrigating the surrounding lands, or any lands of the lessee, the mere fact that it was open to the lessee to irrigate any particular land near about the tank if he so desired with the water of the tank would not make the lease of only the tank an agricultural lease, because it would not be its primary object." 16. In the instant case, admittedly there is no instrument of settlement from which the intention of the landlord can be gathered as to for what purposes the tank was settled. In absence of any such instrument in my considered opinion the lower appellate Court rightly disbelieved the story of oral settlement of tank by the ex-landlord in favour of the plaintiff-appellants. 17. Be that as it may, I am of the considered opinion, that settlement of tank without any agricultural land appertaining thereto can not be made orally for the reason that settlement of tank can not be treated as agricultural lease. The claim of raiyati interest over the tank by the plaintiffs can not be sustained in law. 18. For the aforesaid reasons, I do not find any illegality in the impugned judgment passed by the lower appellant Court. There is no merit in this appeal which is accordingly dismissed.