PACHO W/O. GOKUL Vs. NIKHELAL TAKHAT

JUDGEMENT

(1.) THIS is a defendants' appeal arising out of a suit for possession of a sir field No. 13/3 in mouza Chulgaon in the Chhindwara district. One Bhawani Singh was recorded as a proprietor, or possibly the sole proprietor,, and apparently as the lam-bardar of this village. On his death it was agreed between the members of his family that the name of his widow Mt. Dulari should be mutated in his place and this was done. Dulari was admittedly appointed the lambardar. On 27th June 1918 Dulari purported to lease in perpetuity two fields, one the sir field in question which was then No. 13/1 and is now No. 13/3 and a khudkasht field which was then and still is No. 47, to the predecessors-in-title of the defendants. She admittedly executed an unregistered document called a 'receipt' in their favour in which she stated that she had leased this land to them in perpetuity on a rent of Rs. 40 in return for a consideration of Rs. 1800. At the settlement of 1919 these lessees were recorded as the ordinary tenants of these two fields, of which No. 13/3 was recorded as sir and the rent of the holding was fixed at Rs. 71. After Dulari's death in 1922 the plaintiffs as the next reversioners, became the proprietors of the village. Up to 1934 they accepted rent from the defendants, who, since the new Tenancy Act of 1920 came into force, have been shown as occupancy tenants of the holding. In 1934 the plaintiffs applied to the revenue officer under Section 94, Tenancy Act, to separate the sir land from the remainder of the holding and this was done, the rent of the sir being fixed at Rs. 52 and that of the other field, formerly khudkasht, at'Rs. 19. In 1935 they brought the present suit to eject the defendants from the sir field.

(2.) UNDER the Tenancy Act of 1898, which was in force when the lease was made, the lessees became ordinary tenants of the holding. Had the holding consisted only of sir land they could have been ejected at will under Section 69(c) of that Act, but, as the holding consisted partly of sir and partly of khudkasht, they acquired the rights of an ordinary tenant and were not liable to ejectment: see Gulab chand v. Bakatawar (1894) 7CPLR 36. Section 37(1)(b), Tenancy Act of 1920, provides that a person who holds sir land as a tenant shall be deemed to be a sub-tenant ; otherwise an ordinary tenant became an occupancy tenant under the new Act. Now ' holding' is defined in Section 2(4) of the Act of 1920 as a parcel of land held by a tenant of a landlord under one lease or one set of conditions. I do not think that it is possible for a man holding a parcel of land to be an occupancy tenant of part of it and sub-tenant of the rest of it. He cannot be the sub-tenant of the part that was formerly khudkasht and he must therefore be the occupancy tenant of the entire holding. I have been referred to my decision in Mt. Imrat Bai v. Mt. Phula AIR 1934 Nag 103 and the decision of Kinkhede A.J.C. in Gokul v. Shyamlalsingh AIR 1926 Nag 35. In the former case I assumed that there were two holdings and the argument that there was only one holding of which the tenant must be the occupancy tenant was not apparently advanced. In the latter case Kinkhede A.J.C. admittedly stated that in spite of the fact that the sir land and other land was given under one lease or one set of conditions so as to constitute one holding, the status of the defendant so far as the sir land was concerned was that of a sub-tenant, but he refused to give the plaintiff a decree for possession and gave him merely a decree declaring that he was entitled to have the holding partitioned under Section 94 and to apply for possession thereafter; the lease was made after 1920.

(3.) FOR these reasons I hold that the defendants acquired the rights of an occupancy tenant in the entire holding before it was separated in 1934 and that therefore they are not liable to be ejected. It therefore becomes unnecessary to consider the terms of the lease originally granted to them. The lower Courts have held that in the absence of a registered document no permanent lease can be proved. It is conceded that a permanent lease could be created by oral contract but the question is whether the document styled a "receipt," which embodies the terms of the contract, would amount to a lease and require registration. That point however need not be decided. For the reasons given above the appeal is allowed and the plaintiffs' suit must fail, and it is dismissed with costs throughout. Counsel's fee Rs. 38.