GANGA HALKHORE Vs. RAJNANDAN PRASAD NARAIN SINGH

JUDGEMENT

(1.) This appeal was admitted to hearing on 21-2-1983 and was referred to a Division Bench by order dated 29-4-1986 to consider whether a Khidmati Jagir in the hands of a servant and in his cultivation on the date of vesting of the estate in the State of Bihar could be claimed by the tenure-holder to be settled by the State with him or not and he would be entitled to recover possession thereof from the servant and hold as a raiyat under the State having occupancy right or not.

(2.) Until the Bihar Land Reforms Act, 1950 came into force in terms of the provisions of the Bihar Tenancy Act, 1885, as amended from time to time 'estate' meant, land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district and included Government Ehas Mahal revenue-free lands not entered in any register, 'Proprietor' meant a person owiug, whether in trust or for his own benefit an estate or a part of a estate. 'Tenune' meant the interest of a tenure-holder or an under-tenure-holder ; 'tenure-holder' meant-primarily a person who had acquired from proprietor or from another tenure-holder right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, and included also the successor-in-interest of persons who had acquired such a right: a 'tenant' meant a person who held land under another person, and was or to have as special contract, was liable to pay rent for that land to that person : 'landlord' meant a person immediately under whom a tenant held and included the Government ; and 'Raiyat' meant primarily a person who had 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 included also the successor-in-interest of a person who had acquired such a right. Land Reforms Act substantially retained the definition of estate' but excluded Government Khas Mahal revenue from lands not entered in any register, the definition of the 'proprietor' including therein the guardian, committee, or other legal curator of a proprietor who was minor or of unsound mind or an idiot, the definition of tenure-holder adding to include the successor-in-interest of person who had acquired such right, a person who held such right in trust, an holder of a tenure created for the maintenance of any p .rson, a Ghatwal and the successor-in- interest of a Ghatwal, and where a tenure-holder was a minor or of unsound mind or an idiot, his guardian, committee or other curator definition of a tenure, adding to include a Ghatwali tenure. A tenure for the maintenance of any person and commonly known as Kharpos Babuana etc. and a share in or of a tenure but not including a Mundari Khunti Katidari, tenancy within the meaning of the Chotanagpur Tenancy Act, 1908 or a Bhuihari tenure prepared and confirmed uader the Chotanagpur Tenancy Act, 1869, and left other characters of such as tenant, Raiyat, etc. and understood in the Bihar Tenancy Act. The interests of a tenure-holder or a proprietor where given a common nomenclature of intermediary in relation to any estate or tenure and Khas possession was given the significant meaning with reference to the possession of a proprietor or tenure- holder of any land used for agricultural or horticultural purposes to mean possession of such proprietor or tenure-holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his servant or by hired labour or with hired stock. Section 3-A (inserted by Act 20 of 1954) prescribed for vesting of the interests of the proprietors and tenure-holders in the State stating that the State Government may from time to time by notification declare that the estate have passed to and become vested in the State and empowered the State Government to declare that the intermediary interests of all intermediaries in the whole of the State have passed to and become vested in the State. Certain categories of the homestead of intermediaries and certain other lands in Khas possession of intermediaries were protected from vesting by the provisions made in sections s and 6 of the Bihar Land Reforms Act. Section 6, in particular, said that on and from the date of vesting all iands used for agricultural and horticultural purposes which were in Khas possession of an intermediary on the date of such vesting, including proprietor's private lands let out in a lease for a term of years or under a lease from year to year referred to in section 116 of the Bihar Tenancy Act, 1885 landlor's privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less referred to in section 43 of the Chotanagpur Tenancy Act, 1908, lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of a estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary was entitled to recover Khas possession thereof would be deemed to be settled by the State with such intermediary and he would be entitled to retain possession thereof and hold him as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner. This was subject to exceptions provided therein in the following words :- "Provided that nothing contained in this sub-section shall be entitled an intermediary to retain possession of any land recorded as Chaukidari Chakran or Goraiti Jagir or Mafi Goraiti in the record of right or any other land in respect of which occupancy right has already accrued to a raiyat before the date of vesting." Question whether grant of a service tenure where terms of the grant indicated that the grantee is to enjoy the usufruct of the land only so long as he rendered service to the grant or of a purely personal nature was exempted from the operation of section 6 of the Bihar Land Reforms Act or not arose more than once and the exceptions enumerated in the proviso were considered by this court in quite a few case. In Ghasi Naik v. Kalikrishna Singh Deo and another, 1962 BLJR 698, the contention was noticed in the following words : -- "The contention is that although the words '-chaukidari chakram" were used in his proviso, yet they meant the same thing as Paikali Chak- ran. This contention is based on the footing that there was an entry

(3.) That was the state of law when the plaintiff respondents (substituted by their legal representative and heirs) filed the suit in the year 1964 for declaration of title and recovery of possession in respect of plot Nos. 10 and 123, khata No. 153, Area 1 Bigha 6 Katah and 7 Dhurs situated in village Bal, Police Station Ekma, district Saran. Their case was that their ancestors had given the lands in dispute to the ancestors of the defendants in lieu of service. The ancestors of the defendants had agreed to render service of Mahtar to the plaintiffs in lieu of the land. Up to 1955, mother of the original defendant rendered service to the plaintiffs and their ancestors, but after that they left rendering service to them in spite of demand. Since the defendants ceased to render service to them, they were not entitled to retain possession of the land given in lieu of wages. The learned First Muusif, Chapra having found that the defendants ceased to render service after 1955 and noticing that the character of the land in possession of the defendants was Khidmati Jagir, decreed the suit by his judgment, dated 10-8-1970.