SAHDEO SINGH Vs. JADU MESTAR

JUDGEMENT

(1.) This second appeal refers to an area of only 6 dhurs of land but has been referred to a Division Bench by Agarwala, J. as it raises a point of law of first impression. The appellants are the plaintiffs. They are the landlords of village Mathuritola within which defendants 2-5 had a holding Khata No. 121 with an area of 3 bighas or more. Out of this they sold 6 dhurs to defendant 1 a resident of village Dehri by sale deed dated 21 February 1938. The transferee, in accordance with the procedure laid down in the Bihar Tenancy Act as recently amended, forwarded the mazarana money to the plaintiffs by money order which was accepted and the name of defendant 1 was given mutation in the Sherista of the plaintiffs in respect of the transferred land. Thereafter defendant 1 began to erect a house both on the area which he had purchased and also by encroachment on a portion of the gairmazrua land of the plaintiffs which is adjacent thereto. So the suit was brought to recover possession of the portion of the gairmazrua land which had been encroached, by demolishing that portion of the house which had been erected thereon. To this extent the suit has succeeded. Secondly, it was claimed not that the 6 dhurs should be forfeited as under Section 25, Bihar Tenancy Act, but that the defendant should be restrained by an injunction from building a house on it, on the ground that the land had all along been in use for cultivation, and by erecting structures on it it will become unfit for cultivation. The Courts below on a reading of Section 23(2)(c), Bihar Tenancy Act, have held that the defendant was entitled to build a house on the land and that the plaintiffs were not entitled for the injunction asked for.

(2.) In second appeal it has been suggested that the defendant having built over all the area transferred to him is not a tenant within the meaning of the Act, that he no longer falls within the definition of a raiyat because he is no longer holding the land for the purpose of agriculture. Then it is said that by building on the entire area transferred to him he has used the land in a manner which renders it unfit for the purposes of the tenancy or impairs its value which he was not entitled to do, so that he is liable to be, if not ejected, at least restrained from the misuse complained of.

(3.) Before examining the provisions of Section 23 as amended in 1934 it may be convenient to refer to the state of the law before that amendment was made. The expression tenant is defined in Section 3(3) as meaning a person who holds land under another person, and is or but for a special contract would be, liable to pay rent for that land to that 1 person. Bent means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant. There is nothing in these definitions to suggest that the existence of a tenancy or the relation between landlord and tenant is affected by the use to which the land is put. If a tenancy is created for one purpose and the tenant uses it for another, then that will not of itself terminate the tenancy though it may give the aggrieved party a cause of action for terminating it. In any case in the present suit the landlord had not prayed for ejectment. He has not repudiated the tenancy and I find no substance in the contention which was first advanced in argument before us that there is now no subsisting tenancy. Raiyat is defined in Section 5(2) as meaning "primarily a person, who has acquired a right to hold land for the purpose of cultivating it" and including also the successors-in-interest of persons who have acquired such a right and an explanation is added that "where a tenant of land has the right to bring it under cultivation, be shall be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he uses it for the purpose of gathering the produce of it or of grazing cattle on it."