ACHHAIBAR MISSIR Vs. SOHAN TELI

JUDGEMENT

(1.) The plaintiffs are the appellants and they have appealed against a decision of the Subordinate Judge of Gaya, who reversed the decision of the fourth additional Munsif of Aurangabad. The appellants had filed a suit for the ejectment of the defendants from plot No. 121 in tauzi No. 4932 with an area of .04 acres. It was the case of the plaintiffs that this land was gairmazrua malik and that on a private partition amongst the landlords, plot NO. 121 had fallen to the plaintiffs' takhta. Their further case, as argued before the trial Court, though not in their plaint, was that the defendants were inducted on to the land to render service and that when they ceased to render service, they were liable to be ejected from the plot in question. The plaintiffs and the pro forma defendants were co-sharer landlords to the extent of two annas eight pies in tauzi NO. 4932. The pro forma defendants supported the case of the plaintiffs. By the expression the defendants in this Judgment, I do not include the pro forma defendants.

(2.) The facts found by the lower appellate Court are that the defendants are settled raiyats of village Nirmal Bigha, which is contiguous to village Tendua, in which plot No. 121 is situated, that the defendants were not inducted on to the land to render service to the plaintiffs, that defendant 1 has been cultivating the land on batai in village Tendua for the last fifteen years or so, and that the defendants have been living in the house on plot No. 121 for the last three generations.

(3.) On the questions of law, the lower appellate Court was of the opinion that as defendant 1 had taken settlement of land in village Tendua at a later date than plot No. 121, it was. debatable as to whether the defendants could acquire occupancy right in plot NO. 121. Relying upon the decision of the Calcutta High Court in Bhikcariram Bhagat v. Maharaj Bahadur Singh, A. I. R. (3) 1916 Cal. 60 : (43 Cal 195), it was of the opinion that although the defendants were settled raiyats of village Nirmal Bigha and had acquired occupancy rights there, the provisions of Section 182, Bihar. Tenancy Act, came to their aid with regard to plot No. 121 in village Tendua which was their homestead land, and the incidents of its tenancy were regulated by the provisions of the Bihar Tenancy Act applicable to lands held by a raiyat. In the opinion of the lower appellate Court, it made no difference that the homestead land was in village Tendua while the lands held in occupancy were in Nirmal Bigha a contiguous village. It rejected the contention of the plaintiffs that Section 183 of the Act could only be applied if the raiyat holds the homestead land is the same village as the land held by him as a raiyat. The lower appellate Court referred to several decisions of this Court, to which reference will be made but was of the opinion that cone of them actually dissented from the decision of the Calcutta High Court in Bhikariram Bhagat v. Maharaj Bahadur Singh, A. I. R. (3) 1916 cal. 60 (43 Cal. 195). It accordingly held that the defendants could not be ejected and that the plaintiffs' suit must be dismissed.