ADMINISTRATOR OF DISTRICT BOARD Vs. DEONATH SAHAY

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for ejectment and for recovery of arrears of rent as well as damages. The suit lands, as described in the schedule attached to the plaint, comprises a number of plots appertaining to villages Aiwan' and Abgilla having an area of 12 bighas 10 kathas 13 dhurs and odd. According to the plaintiff's case, these lands were acquired under the Land Acquisition Act for the District Board, Gaya, and are meant for road side and side cutting land of the Gaya-Gopalganj Road. These were subsequently settled with the defendant for the purpose of cultivation under a registered deed of lease dated the 31st May, 1932, executed by the then Chairman of the District Board. The settlement was made for a period of five years on an annual rental of Rs. 3.00 per bigha, payable according to the English Calendar year, the total rent being Rs. 37/8.00 per year. Under the terms of this lease, the lessor was entitled to determine the lease whenever the lands would be required by the District Board, after giving three months' notice to the lessee. The defendant duly came into possession of the lands by virtue of this settlement and after the expiry of the period of the lease in the year 1937, he was allowed to continue in possession over the lease-hold property from year to year in each successive year on the same terms as before. Subsequently, as the lands were required by the plaintiff and also because the defendant had defaulted in payment of rent, a notice was issued by the plaintiff to the defendant on 14-5-1953 demanding arrears of rent amounting to Rs. 114/12.00 and also calling upon the defendant to vacate possession of the lands within three months from the date of the receipt of the notice. The defendant thereon sent a reply dated 1-9-1953 claiming to have acquired occupancy rights in the lands in question by adverse possession and refused to vacate the same. It was further alleged by the plaintiff that as the value of the land with respect to which the aforesaid lease was executed in the year 1932, was more than Rs. 500.00, the Chairman of the District Board was not empowered to make any such settlement in view of the provisions of Rules 93, 94 and 103 framed by the State Government by virtue of powers vested under Section 138 of the Bihar and Orissa Local Self-Government Act. The aforesaid lease was in consequence void ab initio and the defendant's possession from the very inception was that of a trespasser and he could not have acquired any tenancy right in the lands in question. It was further alleged that in any view of the matter as the defendant had asserted independent and hostile rights in his reply dated 1-9-1953, he had forfeited all his rights to continue in possession as a lessee or tenant holding over from year to year after the expiry of the period of the aforesaid lease. On these allegations, the plaintiff prayed for a decree for eviction of the defendant from the lands in suit and for delivery of possession of the same to the plaintiff and also made a further claim for recovery of a sum of Rs. 225.00 on account of arrears of rent for a period of six years, namely, 1953-54 to 1958-59 at the rate of Rs. 37/8.00per year besides a further amount of Rs. 30.00 as interest thereon and a further sum of Rs. 2190.00 as damages at the rate of Re. 1.00 per day from 2-2-1954 to 2-2-1960, the total amount claimed being Rs. 2445.00. It may be mentioned here that the suit was initially filed in the Court of Munsif 1st Court, Gaya, on 15-2-1960, but the plaint was returned by that Court on 23-4-1960 and was thereafter refiled on that very day in the Court of Munsif, 2nd Court, Gaya.

(2.) According to the case of the defendant as made out in the written statement, the lands in suit had been acquired by the District Board partly by virtue of gift made by the Tekari Raj and partly under the provisions of the Land Acquisition Act. It appears, however, from the judgments of both the Courts below that this plea about acquisition of a part of the lands by virtue of gift made by the Tekari Raj was given up in the trial Court as well as in the lower appellate Court and it was conceded that the entire lands had been acquired on behalf of the District Board by virtue of the provisions of the Land Acquisition Act. The case of the defendant further was that although the lands were originally acquired for the purpose of construction of a portion of Gaya-Gopalganj Road and a part of the road and some bridges were thereafter actually constructed thereon, these were all washed away by floods. Hence these lands were considered to be unfit for the aforesaid purposes and some other lands were thereafter acquired and the road was diverted through those lands. Since after that the suit lands ceased to have the character of being part of any road and road side land and side cutting land and were lying parti. Subsequently, these lands were settled with the defendant for agricultural purposes under the registered deed dated 31-5-1932, referred to above, on the distinct understanding that the District Board would not evict the defendant unless the lands were required by the District Board for being used as road or road side land. The defendant's case further was that the aforesaid registered deed was a valid document and having come into possession of the lands as a raiyat, he acquired the status of an occupancy raiyat with respect to these lands by virtue of the provisions of the Bihar Tenancy Act. It was contended that, as such, the plaintiff was not entitled to evict him from the lands in question. The defendant further expressed his willingness to pay the arrears of rent due from him which, according to him had not been accepted by the plaintiff in spite of his offer to pay the same. The claim for damages was challenged as being not maintainable at all and the defendant further took a plea of the suit being barred by limitation.

(3.) Both the trial Court and the lower appellate Court have come to the concurrent finding that the lands in suit do not constitute road side and side cutting land appertaining to Gaya-Gopalganj road and they have accordingly held that the provisions of Article 146-A of the Limitation Act which provide for a period of limitation of 30 years with respect to suits by or on behalf of any local authority for possession of any public street or road or any part thereof are not applicable in this case. The Courts below have further held that the registered lease of the year 1932, which was executed on behalf of the plaintiff in favour of the defendant with respect to the lands in suit, was void as it violated the provisions of Rules 93, 94 and 103 of the rules framed by the Government of Bihar under Section 138 of the Bihar and Orissa Local Self-Government Act snd as would appear from the judgments of the Courts below, this position was conceded on behalf of the defendant also at the time of the hearing of the suit as well as the first appeal. The Courts below accordingly came to the finding that the possession of the defendant was that of a trespasser since the time he came in possession by virtue of the lease dated 31-5-1932. The trial Court further came to the finding that having been in possession of the lands for more than 12 years, the defendant acquired a valid right as lessee by proscription and, as such, he could not be evicted from these lands. The lower appellate Court held that the defendant's contention about having acquired occupancy right could not be upheld in view of the provisions of Section 116 of the Bihar Tenancy Act whereby acquisition of such right is barred so far as the lands acquired under the Land Acquisition Act are concerned. The lower appellate Court, however, agreed with the finding of the trial Court that the defendant could not be evicted from the land as he had been in possession thereof for more than 12 years. The plaintiff's claim for eviction was accordingly disallowed by both the Courts below. As for the claim for arrears of rent and damages, the trial Court held that the plaintiff was entitled to a decree for recovery of rent for a period of six years immediately before the suit and allowed the plaintiff a decree for Rs. 225.00 only on account of rent for the period 1953-54 to 1959-60 at the rate of Rs. 37/8.00 per year. The claim for damages as made by the plaintiff was disallowed. The lower appellate Court has affirmed the finding of the trial Court on these points. In accordance with the findings as mentioned above, the suit was decreed by the trial Court in part by allowing a decree only for arrears of rent for the amount mentioned above and the appeal preferred by the plaintiff was dismissed by the lower appellate Court. The present appeal has thereon been preferred by the plaintiff.