BARA CHHATU RAJWAR Vs. ANANDA RAJWAR

JUDGEMENT

(1.) The plaintiff-respondents sued for a declaration of their title to and for recovery of possession of survey plot No. 315 of Mazar Daldali which they alleged was a part of their raiyati holding and from which they alleged they had been dispossessed by the defendants two years before the final publication of the Record of Rights in 1925. The Court of appeal below has held that the plaintiffs were dispossessed two years before the preparation of the draft Record of Rights which was in 1329 Fasli and has accordingly held that the plaintiffs were dispossessed in 1920. The present suit was instituted on February 27, 1931, within 12 years from the dispossession. The question that has been agitated before us is one that has been dealt with by the Courts below; but it is contended that the question arises on the findings. The defendant-appellant contends that he has converted the land in dispute into paddy land and had therefore acquired occupancy rights in it by reason of the provisions of Section 64, Chota Nagpur Tenancy Act, relating to korkar. Apart from the question whether occupancy rights can be acquired by this method within the occupancy holding of another raiyat, Section 66 in the present case is a bar to the defence. That section provides that nothing in Section 64 shall authorize any cultivator to convert into korkar any cultivated land in the direct possession of any other person. Admittedly the disputed land was a part of the occupancy holding of the plaintiff and the only question is whether it was cultivated land. Both parties led evidence on this point alleging that the land had been cultivated for some considerable time before the Record of Rights was prepared. Section 66, therefore, is a bar to the acquisition of korkar rights in the disputed land.

(2.) It is unnecessary, in the circumstances, to discuss certain decisions of this Court relating to the scope of Section 64. They are Rahamali Kalal v. Chintaman Kumar 38 Ind. Cas. 478 : AIR 1917 Pat. 243, (Atkinson, J.), Lal Sahi Palian v. Deba Munda 105 Ind. Cas. 58 : AIR 1928 Pat. 87, (Allanson, J.) Second Appeal No. 89 of 1925 Akshay Mandal v. Phalari Bhumij (Ross, J.) and Second Appeal No. 1183 of 1932 (Doman Mia v. Gunaram Mahata 159 Ind. Cas. 350 : AIR 1936 Pat. 39 : 2 BR 78 : 8 RP 274 (Dhavle, J.). The appellant contends that these cases decided that occupancy rights may be acquired by the process of korkar in the lands of a tenant. They are, however, not authorities for the proposition that occupancy rights may be acquired by the process of korkar in cases where Section 66 clearly bars such acquisition, namely, where the land in dispute is cultivated land in the direct possession of another. This appears to be indicated in the judgment of Allanson, J. in Lal Sahi Palian v. Deba Munda 105 Ind. Cas. 58 : AIR 1928 Pat. 87, That was a suit by mundari khuntkattidars to eject a person who had converted a nala into a paddy field. In dismissing the suit Allanson, J. said:

(3.) Further, an aspect of the matter not considered in the cases referred to is this: When korkar rights are acquired in the lands of a proprietor, the cultivator merely acquires a certain subordinate right, i.e., the right of occupancy. He does not eliminate the proprietary right of the owner of the land. But what right does he acquire when he encroaches upon and converts into paddy land the land of an occupancy raiyat By analogy with the case of a proprietor s uncultivated land he should acquire a right subordinate to that of the occupancy raiyat. But the statute confers occupancy rights on a person to whom Section 64 applies. This, in my view, indicates that it was not intended that an occupancy raiyat should be deprived of his land by a person who trespasses upon it and converts it into paddy land, unless, of course, the trespasser acquires a title by adverse possession for the period prescribed by the general law of limitation. In a proper case it may therefore be necessary in the future to consider whether Section 64 applies to the land of a tenant. The appeal is dismissed with costs.