SANATAN SAHU Vs. BHAJA SAHU

JUDGEMENT

(1.) This appeal arises out of a suit by the plaintiff to recover 34 acres on the allegation that the defendant is a chandnadar and is a tenant-at-will and has been served with notice to quit but has not vacated the land. The lower courts have held that the defendant has rights of occupancy in the entire land in suit and have dismissed the claim. The lands in suit are recorded under two khatas; that is khata No. 129 having an area of 28 acres and comprising 3 plots, 254 houses 255 bari and 261 cultivated land bearing a gram crop. The entry in the Record of Rights in respect of this holding is raiyati with right of occupancy. The finding in respect of this land is not challenged in second appeal. The other holding bearing khata No. 194 comprises an area of 05 acre in plots 254-699, a house and 255-700 bari bearing miscellaneous crops. No rent is shown as payable for this, but there is in the remarks column an entry "as chandna by grant from the zamindar." The revenue purchaser of the mahal can realize suitable rent for it. In the valuation of the assets of the village this holding is set down as valued at 9 pies. The lower Appellate Court held that defendant was a raiyat and held right of occupancy in these plots on the same terms as in the plots of khata No. 129.

(2.) In second appeal it is argued that once the land has been entered as chandna it ought to have been held as a matter of course that the defendant was a tenant- at-will "Chandnadar" is defined in Section 3, Orissa Tenancy Act. as a person holding land which has been recorded as chandna in the course of a settlement of land revenue and for which a rent has been fixed for the term of that settlement. The notes to the section in Das Gupta's Edition explain that shopkeepers, artisans and labouring classes who having no arable lands in the village pay rent for their homestead lands only are called chandnadars and the tenure chandna. Pahi raiyats also who having their home in one village hold house or homestead in another are sometimes known as chandnadar of the latter village. The word "chandna" it is further stated has come to be used for all homestead land paying rent separately from the arable lands. Chandnadars are not agricultural tenants but their assets are included in the amounts which proprietors have to collect and on which their revenue is assessed. The definition of tenant in Section 4 of the Act mentions chandnadars as one of the classes of tenants and the note of this section is that chandnadars are classed as tenants throughout the Orissa Tenancy Act. They have been placed on the same footing as agricultural tenants. Section 236 is the special section of the Act dealing with rights in homestead. Clause 1 enacts that: when a raiyat holds his homestead otherwise than as part of his holding as a raiyat the incidents of his tenancy of the homestead shall he regulated by local custom or usage, and subject to local custom or usage, by the provisions of this Act applicable to land held by a raiyat.

(3.) It follows from this that there is no bar in the Tenancy Act to the accrual of occupancy rights in a homestead held by a raiyat otherwise than as part of his holding as a raiyat. Both the courts below have found that the defendant is a genuine agricultural tenant and not merely an artisan having only a residence Sub- Section 2, Section 236 declares that: save as otherwise expressly provided in this Act, the incidents of the tenancy of a chandnadar shall be regulated by local custom or usage and his rent shall be liable to re-assessment on each revision of a land revenue.