JAGADISH CHANDRA DEO DHABAL DEB Vs. DEBNATH MAHTO

JUDGEMENT

(1.) In this case four appeals from the High Court at Patna have been consolidated. They are brought by the proprietor of the permanently settled estate of Dhalbhum, a large estate situate on the eastern part of the district of Singhbhum in Bihar but extending for a little distance into Bengal. The orders complained of were made by the High Court on 29 April 1936. They arose out of four applications for execution made to the Revenue Court at Jamshedpur on 10 March 1934. By each of these applications the appellant sought execution of a decree for rent obtained by him against the respondents respectively as the person or persons holding certain tenancies in four different mouzas of his zemindari. These decrees had been obtained ex parte: in the plaints and in the decrees the tenancies were described as "tenures," and by his execution proceeding in each case the appellant, on the footing that the tenancies were tenures within the meaning of the Chota Nagpur Tenancy Act, 1908 (herein called "the Act"), applied for the sale of the tenancy under the provisions of S. 208. Each tenancy was described by its boundaries and by its area as disclosed in the record of rights and was further described as "held in pradhani right." The terms of S. 208 under which these applications claimed to come, are that when a decree is for an arrear of rent due in respect of a tenure or holding the decree-holder may apply for the sale of such tenure or holding and the tenure or holding may thereupon be brought to sale in execution of the decree; provided that the Commissioner may, by order in any case in which he may consider it desirable so to do, prohibit the sale of any tenure or portion thereof or stay any such sale. The Deputy Collector dismissed the applications, holding that a pradhan was not saleable, but an appeal to the Judicial Commissioner (Mr. Najabat Hussain) having been taken in each of the four cases (and in six others which are not now in question) that decision was reversed (29 September 1934), it being held that there is no provision in the law which prevents a pradhan right or the interest of a village headman being sold for arrears of rent in respect thereof.

(2.) The tenants in the ten cases appealed to the High Court which used its powers under O.41, R.25, Civil PC. On 24 September 1935, it directed the Judicial Commissioner to take evidence and report his findings upon the following issue : Whether the pradhan in each of the ten cases before as is liable to be sold in execution of the rent decree either under the custom prevailing in the locality or under the law enforced in that district. This issue was tried by Mr. W.W. Dalziel, District Judge, as Judicial Commissioner. The evidence produced before him for the tenants consisted of the record of rights prepared at the last survey and settlement under Chs.12 and 15 of the Act and the Settlement Report of Mr. J. Reid, I.C.S., the officer who had made the settlement in Dhalbhum during the years 1906 to 1911. Evidence on behalf of the appellant was given by five witnesses, whose evidence was supported by production of a large number of pradhani pottahs and kabulyats; also of registered sale deeds showing numerous instances in which pradhani tenancies had been sold. On the evidence as a whole Mr. Dalziei came to the conclusion that the practice of selling pradhani tenancies for arrears of rent had begun about 1906 and not earlier, and that it was due to the action of ijaradars, from whom a capital sum had been raised by the proprietor in 1904 on the terms of a lease for 25 years, and whose agents "were neither familiar with the local system of land tenure nor particularly interested in preserving it." He found that the ancient custom of the Dhalbhum estate is that on non-payment of rent the pradhans are ejected and others appointed in their places by the zemindar; that the pradhan's rights are not sold in execution or by private sale; and that they do not come within the definition of tenures so as to be liable to sale under the Act. In six of the ten cases before him he held that the original customary incidents of the tenancy were no longer in force and that they were liable to be sold in execution for arrears of rent. But as regards the four tenancies now in question - the names of the villages are Kalajhore, Bankata, Mauda, Kuldhia - notwithstanding that the pradhans were Hindus and not aboriginals as previous pradhans had been, he held that each was a genuine pradhan and was not liable to sale for arrears of rent, the only remedy of the zemindar being to remove the pradhan. He arrived at these findings on the basis of the satwalipis or records of pradhani rights prepared under Chap. XV of the Act and made conclusive evidence by S. 132.

(3.) In the six cases in which the tenancy bad been held by Mr. Dalziei to be saleable, the tenants' appeals were not persisted in before the High Court and were dismissed. But in the four cases now before the Board, Noor J. (with whom Saunders J. agreed) held that the pradhans were not saleable and restored the order made by the Deputy Collector at first instance. The view taken by the learned Judge was that the pradhans are a sort of tenure-holders and come within that class under some provisions of the Act; but that their treatment in the Act and their rights as recorded in the satwalipis show that they are not tenure holders pure and simple, but are something more and form a distinct class by themselves. He pointed out - according to the satwalipis of these four villages - that the rate of rent at the time of a fresh settlement is not merely in the landlord's discretion; that the pradhan and the raiyats have rights in jungle lands not included in the area of the pradhan, that the pradhan is not transferable or divisible by the pradhan; that in no case is any mention made of a right of sale for arrears of rent though the landlord's remedy of ejectment is noted; and in no case is it said that the landlord has a right to hold the village khas. As the places of the original pradhans had been taken by newcomers, he thought that these latter pradhans came within the second of the three classes mentioned by Mr. Reid in his Settlement Report - viz,, (1) khuntkatti pradhans, (2) nonkhuntkatti pradhans with heritable rights, (3) nonkhuntkatti pradhans with non heritable rights. The pradhan right in these four cases he described thus : The right is independent of the pradhan being a khuntkattidar so long as the incidents of the tenancy are the same. Cases may happen in which a pradhan is removed and in his place another man is appointed but the new man will be clothed with all the rights and liabilities of his predecessor and will hold the tenancy with all the incidents appertaining to it. He will not become a tenant of a different class altogether. His careful characterization of the four tenancies led the learned Judge to conclude that though the pradhans are tenure-holders in their relation to the superior landlord they are also his permanent agents for certain purposes, e. g., the supply of grain for troops (rasad); they are landlords of the raiyats of the village and also their headmen and holders of an office and are in this capacity their representatives. The right and interest of the raiyats having been recognized by S.74-A (introduced into the Act in 1920) the learned Judge considered that a right in which third persons are interested cannot be sold behind their back.....S.74-A makes it impossible for me to hold that pradhani rights are saleable.