GHASI SAHU Vs. SHIB SAHU

JUDGEMENT

(1.) This appeal arises out of. a suit for recovery of possession of the disputed plots of land mentioned in Schedule B of the plaint. These plots form part of two raiyati holdings bearing khata Nos. 66 and 142 in mauza Hochar. These holdings were sold on 18 May 1986 in execution of a decree for arrears of rent obtained by the Maharaja of Chota Nagpur against the recorded tenants and were purchased by the plaintiffs. The plaintiffs took delivery of possession of the holdings including the disputed plots on 12 July 1936. Since then, they allege, they were in possession of the holdings. But in Aghan 1993 Sambat the defendants in collusion with one another dispossessed them from the disputed plots, alleging that they were under-raiyats in respect thereof. There are 15 defendants out of whom 7, 8 and 11 to 15 contested the suit. Defendant 9 admitted the plaintiffs claim. The defences raised were substantially twofold. The first was that the decree obtained by the landlord was not a rent decree and the sale held in execution of it was not a rent sale under the provisions of Section 208, Chota Nagpur Tenancy Act, but was a sale by which only the right, title and interest of the judgment-debtors passed to the auction purchaser. The grounds on which the decree was said to be not a rent decree were, firstly, that one of the defendants in the rent suit, namely Bara Rungtu Munda, had died before the suit and his heirs were not made parties; secondly, that another defendant Baij Laha was a minor but was impleaded as a major; and thirdly, that two plots Nos. 863 and 978, out of the two holdings were omitted from the suit. The other defence was that the defendants were under-raiyats with occupancy right in the disputed plots and their occupancy right in these plots could not be annulled by the rent sale, and therefore they could not be evicted from these plots. They pleaded that by custom and usage they acquired occupancy right by remaining in possession for more than 12 years.

(2.) In the revisional record of rights the defendants, excepting 11, were recorded to be in possession of the disputed plots, except plot No. 1687, as under-raiyats having occupancy right. There is a village note Ex, B dated 6 February 1934 to the effect that there is a custom in the village that "an under-raiyat also acquires occupancy right in the same manner as other tenants. Relying upon this village note, and the record of rights, the learned Munsif held that the defendants acquired occupancy right in the disputed lands. On the other questions, he found that Rungtu Munda was not dead at the time when the rent suit was brought and that the defendant Baij Laha was not a minor. He, however, held that plots Nos. 368 and 978 were left out in the rent suit and that therefore the rent sale was not a sale under Section 208, Chota Nagpur Tenancy Act, and could not affect the interest of persons other than the judgment-debtors. He further found that the plaintiffs acquired a valid title by their auction-purchase to plot No. 1687 which was recorded as a kaimi land of Rungtu Munda (father of defendant 11) who was a party to the rent decree and the rent sale. Upon these findings, he decreed the suit in part only with respect to plot No. 1687 and dismissed it with regard to the remaining plots.

(3.) On appeal by the plaintiffs, the learned Subordinate Judge held that the defendants failed to establish that they acquired by custom occupancy right in the disputed plots. He also reversed the learned Munsif's finding that two plots of the holding were omitted from the rent suit. He found that by mistake plots Nos. 263 and 878 were mentioned instead of plots Nos. 363 and 978 respectively. He affirmed the findings of the learned I Munsif on the other points. Accordingly he allowed the appeal and decreed the suit. Defendants 1, 11,12,13 and 14 have preferred this second appeal. This appeal was originally heard by Manohar Lall, J., who referred it to a Division Bench. The chief contention of Mr. K.K. Banerji on behalf of the appellants is that the learned Subordinate Judge's finding that "the defendants have failed to establish the fact that they have acquired by any custom or usage the right of occupancy in their under-raiyati holdings" cannot be regarded as a finding of fact binding in second appeal. The learned Subordinate Judge says: in the present case there is no evidence on the record to show whether the under-raiyati holdings were created by contract or whether there is any local custom or usage by which under-raiyats can acquire rights of occupancy in their under-raiyati holdings except the village note (Ex. E) in which it is said that under-raiyats do acquire occupancy rights in the same manner in which a tenant does. There is no presumption of the correctness of this entry in the village note.