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2008 DIGILAW 1481 (PAT)

Kartik Mandal v. State Of Bihar

2008-09-22

SHEEMA ALI KHAN

body2008
Judgment 1. This appeal arises from a judgment and decree, dated 24-8-1974 passed in Title Suit No. 178/124 of 1968/ 1974 by the 3rd Additional Subordinate Judge, Bhagalpur. 2. By the aforesaid judgment and decree the trial Court has held that the plaintiffs do not have occupancy right with respect to the suit land. 3. The suit was filed for declaration that I the plaintiffs are the raiyats of the suit lands J and have got occupancy right thereon and the defendant, i.e. State of Bihar has no right to make settlement of the suit land and, if ! any, such settlement is made, it will be in violation of the provisions of law. 4. The lands in question appertain to khesraNos. 12, 13, 14 and 15of khata No. 4 situated in Mauza Asanandpur, Thana No. I I I and measure 6, 7 acres and land of khesra No. 12, khata No. 5 situated in Mauza Dharrnpur Mills measuring 3 acres. The lands have been described in the records of right as Ghair Mazrua Mokaridar, the Collector of Bhagalpur under the Thakurs of Barari who were the proprietors. 5. The plaintiffs case is that they were in possession over the lands for more than fifty years on the basis of successive settlements made with them from time to time by the Collector of Bhagalpur on payment of rent. The entry made in the recent Khatiyan describes the lands as Ghair Mazrua and indicates that the lands are in possession of plaintiff No. 1. The plaintiffs filed a petition for fixation of rent on 14-9-1967 which was referred to Halka Karmchari for enquiry. The Halka Karmchari found the plaintiffs in possession and the Circle Officer recommended that the fixation of rent should be made in favour of the plaintiffs. The Dy. Collector Land Reforms, Sadar, Bhagalpur by order, dated 15-7-1967 rejected the recommendations made by the Circle Officer. The plaintiffs came to know that a fresh settlement was to be made and he filed an application claiming title and possession and stating that the State had no right to make any settlement. On rejection of the claim the plaintiffs filed the suit. 6. The plaintiffs came to know that a fresh settlement was to be made and he filed an application claiming title and possession and stating that the State had no right to make any settlement. On rejection of the claim the plaintiffs filed the suit. 6. A written statement has been filed on behalf of the defendant 1st party stating therein that in recent survey the suit lands have been recorded in the name of State of Bihar and the entry made with respect to possession of the plaintiffs is incorrect. The State has denied the possession of the plaintiffs and had stated that the settlements have been made to defendant 2nd set with respect to the land in question. It is the specific case of the defendants that the suit lands were/are known as Choti Race Course. Sri Karan Mohan Thakur was the landlord in respect of the lands of Mauza Asanandpur whereas Sri Taraknath Ghosh was the Mokaridar with respect to both the lands which were recorded as Ghair Mazrua Mokaridar. 7. During the recent survey and consolidation proceeding the lands were recorded as Ghair Mazrua Sarkar. It has specifically been stated that 15 bighas, .15 kathas and 17 dhurs of lands were temporarily leased by public auction under the orders of the Collector, Bhagalpur and from the records it appears that several persons including plaintiff No. 1 took part in the public auction for temporary settlement. It is stated that the defendant had not acquired right, title and interest over the suit lands as he was a settlee for specific period only. 8. The Court below has framed six issues. The issue with respect to service of notice under Section 80, CPC and question of limitation and maintainability of the suit have been decided in favour of the plaintiffs. The Court below has found that the plaintiffs are not occupancy raiyat of the suit land. For this purpose the Court below has referred to the evidence led on behalf of the plaintiffs and found that the plaintiffs were not in continuous possession. The Court has also relied on Section 20 of the Bihar Tenancy Act to hold that the plaintiffs do not have any occupancy right. 9. The main question that arises on behalf of the plaintiffs-appellants is that whether the plaintiffs have occupancy right in terms of Section 20 of the Bihar Tenancy Act. 10. The Court has also relied on Section 20 of the Bihar Tenancy Act to hold that the plaintiffs do not have any occupancy right. 9. The main question that arises on behalf of the plaintiffs-appellants is that whether the plaintiffs have occupancy right in terms of Section 20 of the Bihar Tenancy Act. 10. I agree with the discussions and the findings and the detail reproduction of the discussions would be only stating the obvious. Therefore, I will refer to them only briefly and where necessary. 11. Admittedly the survey records of right were finally published in 1907, showed the lands to be Ghair Mazrua Mokaridar of the Collector, Bhagalpur. The lands were known as Chhoti Race Course and the Collector as Secretary of the Race Course Committee, Bhagalpur was recorded in the Khewat as a junior holder under Mahashai Taraknath Ghosh and others. The Collector was settling the land on Naghdi rent and as such it is to be seen whether the plaintiffs have become raiyat under Section 20 of the Bihar Tenancy Act, P.Ws. 1,2,3,6 and 7 have all supported the fact that the plaintiff took settlement of the land from the Collector for a period of five years. As a result of the said settlement the plaintiffs came into cultivating possession. It must be remembered here that it is not disputed that the plaintiffs possession was by virtue of the settlement by auction. It is the plaintiffs case that they by virtue of the survey entry they are now raiyat of the said land. There is no reason to disbelieve the fact that the plaintiffs were in possession of the lands and this aspect has not been doubted by the Court below as the evidence on this point is not disputed. The plaintiffs claim that they are in possession of the lands since 1925. Rent receipts from the year, 1948 have been produced in order to substantiate the fact that the plaintiffs by virtue of the auction have been cultivating the lands from 1948. 12. It is not disputed that the plaintiffs have taken settlement of the lands in question by virtue of an auction being held every five years. The last time when the plaintiffs took settlement of the said land was in the year 1961, the period of lease expired in 1965. 12. It is not disputed that the plaintiffs have taken settlement of the lands in question by virtue of an auction being held every five years. The last time when the plaintiffs took settlement of the said land was in the year 1961, the period of lease expired in 1965. Thereafter, the case of the plaintiffs is that they have filed an application for fixation of rent before the Circle Officer and the Halka Karmchari had conducted spot verification and found that the plaintiffs were in possession and, thus, the Deputy Collector Land Reforms rejected the application which resulted in filing of the suit. With respect to possession the evidence of the defendants is that the lands was settled from the year 1966 onwards to different persons and the defendants have led evidence oral and documentary to substantiate this point. As far as the defendants evidence with respect to settlement of the year 1966 and onward is concerned, I have to say that it is not very relevant as the plaintiffs are claiming that they are raiyat of the village by virtue of being lease holder from the period1925 onwards and the settlements have been made subsequent to the filing of this suit. 13. The trial Court has also discussed in great detail that the plaintiffs were not in continuous possession. I agree with the findings of the trial Court, the plaintiffs would be deemed to be in possession for five years only in terms of the settlement made by the State, by way of holding an auction for the settlement of the land. However, once the period of five years expires, the plaintiffs possession ceased and the Collector came in possession both in facts and in law, and it is thereafter that fresh settlement was made for the next five years and, therefore, I agree with the findings of the trial Court that the appellants cannot be said to be in continuous possession. 14. The question which is to be consid- ered is whether the plaintiffs by virtue of Section 20 of the Bihar Tenancy Act would be a settled raiyat of the lands in question. 14. The question which is to be consid- ered is whether the plaintiffs by virtue of Section 20 of the Bihar Tenancy Act would be a settled raiyat of the lands in question. Section 20 gives a definition of settled raiyat which is "every person who, for a period of 12 years whether wholly or partly before or after the commencement of this Act, has continuously held as a raiyatee land situate in any village, whether under the lease or otherwise, shall be deemed to have become, on the expiration of that period a settled raiyat of the village." As stated earlier the key words to this section to make a person as raiyat of the village would be that : (a) he should be in possession for a period of 12 years, and (b) that the possession should be continuous. 15. In the present case the plaintiffs were in possession for a period of five years at a time on the basis of a lease. The moment the period of lease i.e. five years expired, the possession of the settler i.e. the Collec-1 tor was restored until further auction was held of the land in question. Therefore, the plaintiffs cannot claim that they were in continuous possession. The meaning of the word "continue" means to keep existing or happening without stopping and the word "continuous" describes something that continues without stopping. Therefore, it has to be interpreted that the plaintiffs were not in continuous possession. Their possession was interrupted by lapse of five years period of lease for which the land was settled. Therefore, it cannot be held that the plaintiffs were in continuous possession for twelve years. Thus, under Section 20 of the Bihar Tenancy Act, the plaintiffs do not come within the purview of the definition of a raiyat. 16. Counsel for the plaintiffs has strenuously argued that the plaintiffs would be raiyat under the Bihar Land Reforms Act. The Bihar Land Reforms Act provides for transference to the State of the interest of proprietor and tenure holders in land. It has been submitted that the case of the plaintiffs would be covered by Section 6 of the Bihar Land Reforms Act. The Bihar Land Reforms Act provides for transference to the State of the interest of proprietor and tenure holders in land. It has been submitted that the case of the plaintiffs would be covered by Section 6 of the Bihar Land Reforms Act. Let us examine the provisions of Section 6 of the Bihar Land Reforms Act which is as follows : "Certain other lands in khas possession of intermediaries should be retained by them on payment of rent as raiyats having occupancy rights. (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) the 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, 1985. (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 himself with his own stock or by his own servants or by hired labour or by hired stock, "(subject to the provisions of Section 7-A and Section 7-B) be deemed to be settled by the State with such (intermediary and he) shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy right in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner." 17. Learned counsel, therefore, submits that on the basis of S. 6 of the Land Reforms Act the appellants would have an occupancy right in the lands in question. One must examine what is meant by an intermediary. Section 2 (jjj) of the Act defines intermediary. "Intermediary" in relation to any estate or tenure, means a proprietor tenure holder, under tenure holder and trustee." 18. In the present case the Collector being the Mokaridar was the intermediary of Sri Karan Mohan. Thakur and Taraknath Ghosh before the vesting of the estate and as such it cannot be held that the appellants would have the status of an intermediary. After the vesting of the estate the Collector became the landlord and as such the provisions of the aforesaid section do not apply to the appellants. 19. Thakur and Taraknath Ghosh before the vesting of the estate and as such it cannot be held that the appellants would have the status of an intermediary. After the vesting of the estate the Collector became the landlord and as such the provisions of the aforesaid section do not apply to the appellants. 19. On the basis of the discussions I find that the plaintiffs cannot get a declaration that the plaintiffs are raiyats of the suit land and have got occupancy right over the lands or that the subsequent settlement made by the Collector in favour of others are illegal and ultra vires. 20. In the result, this appeal is dismissed for the reasons stated above.