BHIKARI BHOI Vs. JAGANNATH MOHAPATRA AND ORS.

JUDGEMENT

(1.) THE three appeals are taken together as they arise out of one judgment of the trial court as also of the appellate court. The Appellants in each case were Defendants in the connected suits. The Plaintiffs purchased occupancy holding Nos. 174 and 217 from one Gadadhar Das, who was a proforma Defendant in all the suits and on whose death no substitution has been made on 1 -5 -53. There were several tenants as under raiyats in different portions of land recorded as homestead in the said holdings. The Plaintiffs brought five different suits for declaration of their title and for confirmation of possession or recovery on possession in the alternative, against the different Defendants connected with those homestead areas. The Plaintiffs' allegations were that the recorded tenants had all surrendered their tight sometime about 1937; that the Plaintiffs' predecessors in -interest were in khas possession of those lands since the date of surrender till the date of sale; that after the sale the Plaintiffs were in possession; and that the Defendants, in each case, were threatening to disturb the Plaintiffs' possession. The contention in each case on the Defendants' side was that there was no surrender by the recorded tenants, and that the Defendants were in possession throughout till the date of the suits. The Defendants also contested that the Plaintiff had acquired no title by purchase of the occupancy holdings, and that the real owner of the occupancy holdings was somebody else, and the Plaintiffs' vendor was a mere benamidar.

(2.) BOTH the courts held that the Plaintiffs' vendor had title over the occupancy holdings sole, and that the Plaintiffs had acquired title by purchase. Both the courts further held that there was no surrender by the recorded tenants, as alleged by the Plaintiffs, in 1937, and that it was the Defendants and not the Plaintiffs or their predecessors who were in actual possession over the respective suit lands. In two of the suits, the recorded tenants were the Defendants. In two other suits, the Defendants were the heirs of the recorded tenants, and in one of the suits the Defendant was the transferee from the recorded tenants. The trial court took the view that it was for the Plaintiffs to establish that the interest of the recorded tenants was not heritable or transferable, and since the Plaintiffs have failed to establish the same, the heirs and the transferees in the suits concerned were under -raiyats under the Plaintiffs; and that since in none of the suits notice of ejectment had been issued, the Plaintiffs were not entitled to recover possession from any of the Defendants. The trial court took a further view that there could be no ejectment of under -raiyats from homestead areas by virtue of Section 236(1) of the Orissa Tenancy Act.

(3.) SUIT No. 146 to which second appeal No. 103 relates, and suit No. 167 to which second appeal No. 88 relates are the two cases where the heirs of the recorded tenants are the Defendants, (sic) suit No. 133 to which second appeal No. 101 relates is a case where the Defendant is the transferee from the recorded tenant. It may be noted that the status of the recorded tenants relating to the suits concerned has been entered as "sikimi" in the record of rights. According to para 65, page 23 of the Final Report on the Revision Settlement, the status of under -raiyats has been recorded as "sikimi", and so obviously the recorded tenants concerned were under -raiyats. The only question mooted in the present appeals is whether the interest of an under -raiyat is transferable or heritable under law. The Orissa Tenancy Act makes provisions regarding the rights and liabilities of the different classes of tenants. In cases of all other classes of tenants, except non -occupancy raiyats and under -raiyats, the right of transfer and of succession has been recognised by the Tenancy Act. Under Section 237 of the Act, it is provided that nothing in the Act shall affect any custom, usage or customary right not inconsistent with, or not expressly or be necessary implication modified or abolished by, its provisions. In illustration A.I.R. 1918 Cal. 452 to the said section, it is mentioned that if there is a custom or usage whereby the right of a non -occupancy raiyat is heritable it is not inconsistent with the provisions of the Act, and so such a custom will not be affected by the Act. This illustration makes it clear that the right of non -occupancy raiyats is not heritable unless so recognised by custom. The right of an under -raiyat is inferior to that of a non -occupancy raiyat. Hence it is clear by necessary implication and if the absence of any express provision in the Tenancy Act that the right of an under -raiyat is not heritable or transferable unless supported by custom. The Bengal and the Bihar Tenancy Acts are on similar lines as the Orissa Tenancy Act in respect of the rights and liabilities of the different classes of tenants. It was held, in Pramatha Bhusan v. Ram Chandra that an under -raiyati interest is not transferable except with the consent of the landlord. It was held in Nirode Mohan Dev v. Jagarali 20 C.L.J. 328, that an ordinary holding of an under -raiyat from year to year is not in itself heritable and there is nothing in the Bengal Tenancy Act which makes it heritable. It was observed in Akhil Chandra v. Hussain Ali 18 C.L.J. 262, that an interest of an under raiyat is not ipso facto transferable. It was observed in Jugesh Chandra v. Maqbul Hussain A.I.R. 1936 Patna 381.