BHAGWAT SHARMA Vs. BAIJNATH SHARMA

JUDGEMENT

(1.) THIS appeal under the Letters Patent raises a problem of some complexity as to the transfer of homestead land governed by Section 182, Bihar Tenancy Act. The problem, in some of its aspects, has been the subject of consideration in several decisions of this Court and the Calcutta High Court. The latest decision of this Court was that of a Special Bench of three Judges in -- 'Hari Narain' Singh v. Babui Mohari', AIR 1949 Pat 413 (A), which practically overruled the earlier decision in --'Mahadeoashram Prasad Sahi v. Parikha Choudhri', AIR 1945 Pat 428 (B). Under orders of my Lord the Chief Justice the appeal has now been placed before a Full Bench of five Judges.

(2.) THE facts so far as they are relevant to this appeal, may be briefly stated. THE plaintiffs are the appellants. THEy brought a suit for a declaration of title and confirmation of possession, or, in the alternative, recovery of possession in respect of about .08 acres of land comprised in plot No. 1050 of holding No. 176 situate in village Lauria, in the district of Monghyr within tauzi No. 445 of the proprietor, popularly known as the Banaili Raj. THE holding was recorded in the record of rights (finally published in 1908) as 'gairmaarua-malik', the total area of the holding being 13 acres. THE holding consisted of this plot, namely, plot No. 1050 on which stood a house and 'sahan'. In the remarks column of the record of rights was recorded the possession of one Musammat Darsano Kuari, widow of Tale Rai. On the death of Musammat Darsano Kuari, one Musammat Chaurabati came in possession of the plot. She was the widow of a brother of Tale Rai. On the 11th of July, 1939, Musammat Chaurabati conveyed the plot, along with her raiyati lands, about 1.46 acres in area appertaining to holding No. 66 in village Siloutha and about 1.08 acres of holding No. 25 of village Tevai, to the defendant second party, namely, one Jagrup Mawar. Musammat Chaurabati died sometime in 1941. THE case of the plaintiffs was that they took possession of the plot on the death of Musammat Chaurabati, in spite of the sale deed executed by her on 11-7-1939. THEn, on 27-6-1946, Bhagwat Sharma, one of the plaintiffs, took settlement of the plot from the landlord, Banaili Raj, under a registered Kabuliat of that date. THE house standing on the plot having become dilapidated by that time, the plaintiffs repaired the house and began to grow vegetables on the rest of the land and amalgamated it with survey plot No. 1051.

(3.) ON appeal, the learned Subordinate Judge held that the question of possession was of little importance in the case, as admittedly Musammat Chaurabati died in 1941, and the defendants first party who came in possession thereafter, were not in possession for more than 12 years. He thereupon discussed the question of title, and affirmed the finding of the learned Munsif that Musammat Chaurabati had a transferable interest in the homestead, which had been validly transferred to Jagrup Mawar; in arriving- at this finding, the learned Subordinate Judge corrected an apparent error of the learned Munsif in treating the disputed land in Lauria as a raiyati holding. The learned Subordinate Judge rightly pointed out that the land was homestead land, held otherwise than as part of a raiyati holding. The learned Subordinate Judge found, however, that Siloutha and Lauria were adjoining villages under the same landlord, and relying on the decision in -- 'Krishna Kanta Ghosh v. Jadu Kasya', AIR 1916 Cal 32 (C) and other Calcutta decisions, he held that the incidents of the homestead land, in the absence of any local custom or usage, would be governed by the provisions of the Bihar Tenancy Act applicable to the raiyati land of Musammat Chaurabati; in that view of the matter, the learned Subordinate Judge held that Musammat Chaura- bati could validly transfer her interest in the homestead land.