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2013 DIGILAW 90 (PAT)

Shiv Pujan Mistri v. Kanhai Mistri

2013-01-21

CHAKRADHARI SHARAN SINGH

body2013
ORDER 1. Heard learned counsel for the appellant. The present appeal under Section 100 of the Code of Civil Procedure, hereinafter referred to as the “Code”, has been placed before me for hearing under Order 41 Rule 11 of the Code. The second appeal has been preferred on behalf of the appellant who was the plaintiff, aggrieved by the judgment and decree dated 18.3.2008 passed by the learned Additional District Judge, FTC No.-IV, Aurangabad in Title Appeal No. 7/01/159/2007, whereby he has dismissed the appeal preferred against the judgment and decree dated 30.1.2001 passed by the learned Additional Munsif-IV, Aurangabad in Title Suit No. 116 of 1997/23/2000, thus confirming the judgment of the trial Court. Briefly stated, the case of the plaintiff before the trial Court was that the land and house as described in Schedule I of the plaint were ancestral land of the plaintiff recorded in old survey record of rights in 1914 in the name of the grand-father of the plaintiff, namely, Sohar Lohar. His case before the trial Court was that Sohar Lohar and Tilak were full brothers and were separate by metes and bounds and separate survey was done and Khata was prepared in the year 1914 in their respective names. Sohar Lohar had six sons but all died issueless except Ganpati and Ruti. Two sons thus, became absolute owner of the whole property of Sohar Lohar. Ganpat also died leaving behind his only son Mahadeo Mistry, the plaintiff in the suit. Ruti died leaving behind him a son Ram Chandra, who was impleaded proforma defendant in the suit. Further case is that Mahadeo became separate and Ram Chandra had given his share to the plaintiff and executed „Bazidawa? with respect to the suit land. The plaintiff claimed before the trial Court that he was the absolute owner of the suit land. 2. Tilak, the brother of the said Sohar Lohar died leaving behind two sons, namely, Dasain and Rameshwar. Rameshwar had two sons, Fakirchand and Sarju. According to the plaintiff, Dasain had no male issue and had five daughters, who after their marriage were living at their respective in-laws? places. So far as Bhagni, one of the daughters of Dasain is concerned, she had some matrimonial disputes with her husband and was forced to come back to her maternal home. According to the plaintiff, Dasain had no male issue and had five daughters, who after their marriage were living at their respective in-laws? places. So far as Bhagni, one of the daughters of Dasain is concerned, she had some matrimonial disputes with her husband and was forced to come back to her maternal home. The plea of the plaintiff before the trial Court was that seeing the condition of Bhagni Respondent no.2 herein, (the plaintiff) allowed her to stay with him in his house which is the part of the suit land. The plaintiff claimed that husband of Bhagni died after lapse of sometime, whereafter the plaintiff asked Bhagni to leave his house for her in-laws? place. Bhagni refused and she claimed in fact her title over the suit land. It was in this circumstance that the plaintiff approached the Court by filing suit for declaration of title and recovery of possession in respect of the property as described in Schedule I of the plaint. Bhagni was impleaded as defendant no.2. 3. In her written statement, defendant no.1 took the plea that Sohar Lohar and Tilak were brothers but they were not resident of the village Amouna, rather they had migrated from village Balia. The case of the defendant was that Sohar Lohar left village Balia ( Dila Bigha) and went to unknown place. Tilak Lohar migrated to village Pandey Bigha tola of village Balia. It was pleaded that the land in suit was abandoned and ex-landlord resumed khas possession and settled the same to defendant no.2/Respondent no.2 who was a maid servant. She was put in possession and by way of memorandum Hukumnama was also granted in her favour. She was paying rent to the ex-landlord and got rent receipts granted by them. On vesting of Zamindari, 4. Bujharat was done in the name of defendant no.1 Kanhai Mistry son of Bhagni, the defendant no.2. They have been impleaded as Respondent nos. 1 and 2 in the present appeal. Further the case of the defendant was that they were regularly paying the rent to the State of Bihar and had got rent receipts granted by the State of Bihar. In the revisional survey, Kanhai Mistry is recorded in possession and parcha has been granted to defendant no.1. 1 and 2 in the present appeal. Further the case of the defendant was that they were regularly paying the rent to the State of Bihar and had got rent receipts granted by the State of Bihar. In the revisional survey, Kanhai Mistry is recorded in possession and parcha has been granted to defendant no.1. The defendants had admitted that due to difference in the family, Bhagni defendant no.1 along with his son Kanhai Mistry defendant no.2 settled in the village Balia Tola Dila Bigha on taking settlement of the suit land and the said Bhagni had constructed house after taking the settlement. On the basis of the pleading of the parties, issues were framed by the trial Court. Learned trial Court on the basis of the evidence and material on record came to the following findings:- “I am of the opinion that plaintiff has no title in respect of suit land. Except the C.S. entry of bataidari, Plaintiff has got no paper in respect of suit land. As such plaintiff is neither entitled for a decree of recovery of possession in respect of Schedule I property nor plaintiff is entitled for a decree of permanent injunction in respect of suit land. Issue nos. 6, 7 and 8 are therefore, decided against the plaintiff.” Accordingly, the suit came to be dismissed. 5. The plaintiff thereafter preferred an appeal under Section 96 of the Code. Learned Additional District Judge, FTC No.-IV, Aurangabad dismissed the appeal after reappraising the evidence on record and recorded the following findings:- “The plaintiff although appears, is heir of Sohar Lohar but from the documents filed on behalf of the respondent/defendants it becomes clear that Sohar Lohar who was as a Bataidar of the land has abandoned the same and thereafter the Ex-landlord settled the schedule I land of the plaint to Bhagini Kuer by Hukumnama and since then the defendants are in possession and are getting revenue receipts by ex-landlord and by the State Government and there is also chaukidari receipt in their favour. The whole case favours to the defendants/respondent.” Assailing these concurrent findings of fact, learned counsel for the appellant has vehemently submitted that the Courts below failed to consider the provision as contained in Section 87 of the Bihar Tenancy Act, 1885 which deals with „abandonment?. The whole case favours to the defendants/respondent.” Assailing these concurrent findings of fact, learned counsel for the appellant has vehemently submitted that the Courts below failed to consider the provision as contained in Section 87 of the Bihar Tenancy Act, 1885 which deals with „abandonment?. He has submitted that as the suit land was abandoned by Sohar Lohar and Tilak and the ex-landlord resumed Khas possession of the land, the Courts below had a duty to consider whether mandatory requirements contemplated under Section 87 of the Bihar Tenancy Act, 1885 were complied or not before the landlord entered on the holding and settled it with another tenant. 6. Learned counsel for the appellant has placed heavy reliance on a judgment of this Court reported in 2008(1) PLJR 39 ; Baijnath Upadhyay and others vs. State of Bihar and others to contend that it was mandatory under the Act and Rules to follow the procedure prescribed under Section 87 of the Bihar Tenancy Act, 1885 before the landlord could take khas possession of the land „abandoned? by a raiyat. Learned counsel for the appellant, in reply to a query by this Court has empathically contended that a „Bataidar? is a „raiyat? within the meaning of Section 87 of the Bihar Tenancy Act, 1885 and therefore, according to him the substantial question of law which is involved in the present appeal is whether the defendants could prove their case of „abandonment? of the suit land by the said Bataidars, namely, Sohar Lohar and Tilak in the absence of any evidence before the Trial Court to suggest that procedure prescribed under Section 87 of the Bihar Tenancy Act, 1885 was followed or not. He would submit that in the absence of any such evidence and in the absence of any proceeding, the alleged resumption of possession by the landlord over the land could not be established, which is the basis of the entire case of the defendant. Over and above this substantial question of law, no other substantial question of law in the present appeal has been suggested by the learned counsel appearing on behalf of the appellant to be involved in the present appeal. Section 87 of the Bihar Tenancy Act, 1885 reads thus:- “87. Over and above this substantial question of law, no other substantial question of law in the present appeal has been suggested by the learned counsel appearing on behalf of the appellant to be involved in the present appeal. Section 87 of the Bihar Tenancy Act, 1885 reads thus:- “87. Abandonment.-(1) If a raiyat voluntarily abandons his residence without notice to his landlord and without arranging for payment of his rent as it falls due and ceases to cultivate his holding either by himself or by some other person, the landlord may, at any time after the expiration of the agricultural year in which the raiyat so abandons arid ceases to cultivate, enter on the holding and let it to another tenant or take it into cultivation himself. (2) Before a landlord enters under this section, he shall file a notice in the prescribed form in the Collector?s office, stating that he has treated the holding as abandoned and is about to enter on it accordingly; and the Collector shall cause a notice to be published in such manner as the State Government, by rule, directs. (3) When a landlord enters under this section, the raiyat shall be entitled to institute a suit for recovery of possession of the land at any time not later than the expiration of two years, or, in the case of a non-occupancy-raiyat, six months from the date of the publication or the notice; and thereupon the Court may, on being satisfied that the raiyat did not voluntarily abandon his holding, order recovery of possession on such term, if any, with respect to compensation to persons injured and payment of arrears of rent as to the Court may seem just. (4) Whether the whole or part of a holding has been sublet by a registered instrument the landlord shall, before entering under this section, on the holding, offer the whole holding to the sub-lessee for the remainder of the term of the sub-lease at the rent paid by the raiyat, who has ceased to cultivate the holding, and on condition of the sub lessee paying up all arrears due from that raiyat. If the sub-lessee refuses or neglects within a reasonable time to accept the offer, the landlord may avoid the sub-lease and may enter on the holding and let it to another tenant or cultivate it himself as provided in sub-sections(1) and (2). If the sub-lessee refuses or neglects within a reasonable time to accept the offer, the landlord may avoid the sub-lease and may enter on the holding and let it to another tenant or cultivate it himself as provided in sub-sections(1) and (2). (5) If an under- raiyat has a right of occupancy in holding or a portion thereof the landlord shall before entering on the holding under this section, offer the whole holding to the under-raiyat at the rent paid by raiyat and on condition of the under-raiyat paying up all arrears due from the raiyat. If the under-raiyat refuses or neglects within a reasonable time to accept the offer, the landlord may enter on the holding and let it to another tenant or cultivate it himself, as provided in sub-sections (1) and (2).” Thus, abandonment as dealt in Section 87 as quoted above deals with voluntarily abandonment by a “raiyat”, his residence or ceasing to cultivate his holding. Evidently the requirements of Section 87 of the Act will have to be followed only if such abandonment is by a “raiyat”. Chapter II of the Bihar Tenancy Act, 1885 deals with classes of tenants. Section 4 of the Act classifies the tenants and reads thus:- “4. Classes of tenants.- There shall be, for the purpose of this Act, the following classes of tenants.(namely):- (1) tenure-holders, including under tenure-holder, (2) raiyats, and (3) under-raiyats, that is to say, tenants holding, whether immediately or mediately, under-raiyats; and the following classes of raiyats(namely):- (a) raiyats holding at fixed rates, which expression means raiyats holding either at a rent fixed in perpetuity or at a rate of rent in fixed perpetuity, (b) occupancy-raiyats, that is to say raiyats having a right of occupancy in the land held by them, and (c) non-occupancy-raiyats, that is to say, raiyats not having such a right of occupancy.” 7. In my opinion, the only evidence which the plaintiff could place before the trial Court was entry in the cadestral survey records of right, wherein his name was entered as the bataidar i.e. under-raiyat. Raiyat and under-raiyat are two different classes of tenants. Section 87 refers to raiyat only. In my opinion, the only evidence which the plaintiff could place before the trial Court was entry in the cadestral survey records of right, wherein his name was entered as the bataidar i.e. under-raiyat. Raiyat and under-raiyat are two different classes of tenants. Section 87 refers to raiyat only. Further, raiyat has been defined under Section 5(2) of the Act as follows:- “5(2) “ Raiyat” means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants, or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right.” Under-raiyat/bataidar have been dealt in separate Chapter-VIII of the Act. 8. In view of the above statutory provisions, the submissions made by the learned counsel for the appellant that Section 87 will be attracted in the present controversy cannot be accepted. His submission that the appellant being an under-raiyat/bataidar is also a raiyat within the meaning of Section 87 of the Act also cannot be accepted. In view of the above position of law and in view of the fact that no perversity has been alleged against the findings of the Courts below, I am not inclined to interfere with the orders passed by the Courts below. The second appeal is accordingly, dismissed.