RAMKISHUN PANDE Vs. BIBI SOHILA

JUDGEMENT

(1.) This is an appeal by the defendants from a decision of the Subordinate Judge of Patna reversing a decision of the Munsif of Bihar. Plaintiffs sued for declaration of title to and confirmation or recovery of possession of survey plot No. 1273 consisting of 11 acres of land in mauza Parsarai, Tauzi No. 7560. A privately- partitioned takhta in that mauza belonged to three cosharers, namely Shamsunnissa, Husaain Bandi and Chamru Pande. By a civil Court partition in 1911 each of these cosharers was allotted a separate takhta. Batwara plot No. 13 fell to the patti of Shamsunnissa, plot No. 14 partly to Shamsunnissa and partly to Hussain Bandi and plot No. 16 to Hussain Bandi. Plot 13 which consisted of a house and sahan was acquired by plaintiffs by exchange with Shamsunnisa in 1927. In the survey which commenced while the partition proceedings were pending these three plots were recorded as survey plot 1273, which is shown in the "gair mazrua malik" khatian.

(2.) In the appropriate column it was noted that Aklu and Badar were in possession of the plot. The defendants are transferees from Badar's widow. The first Court found that Aklu predeceased Badar, that the latter's widow transferred the house and land to the defendant in 1918, that the tenancy commenced after the coming into force of Section 108(j), T.P. Act, 1882, and, therefore that the transfer was valid. The lower appellate Court held that the inference to be drawn from the survey entry was that Aklu and Badar had no title to the land on which their house was situated and that it was not transferable without the consent of the landlord. The suit was therefore decreed with respect to Batwara plot No. 13 and so much of Batwara plot No. 14 as fell to the patti of Shamsunnissa, and dismissed with regard to the rest of the land. The instructions for filling up the khasra (R. 103 of Technical Rules of the Settlement Department, 1927, Vol. 1, p. 39) directs that: in the case of uncultivated lands no entry of landlord's name need be made in Col. 2 (i.e. in the column provided for the name of the cultivator), but the entry will be in the form gair mazrua khas for lands in possession of the rent receiver and in the form gair mazrua am for lands in which the villagers have a right in common.

(3.) This corresponds to Rule 271 of the former Survey Manual. Rule 125(a) corresponding to Rule 293, Survey Manual, directs that: in the case of uncultivated lands in direct possession of the landlord the entry in Col. 4 (of the khatian) will be gair mazrua khas or some other corresponding phrase. Rule 128 (corresponding to Rule 297, Survey Manual), directs that: when lands covered by houses are not included in any agricultural holding, they may be entered separately in a continuous khatian slip for the whole village site, if this be convenient, but details of occupancy must always be entered against each plot number. Finally, Rule 278 directs that: if the tenant of homestead land is not a raiyat, the plots will be entered in the gair mazrua malik khatian without any specification of rent. Neither Aklu nor Badar held any agricultural land in the mauza and the land in dispute does not form part of any agricultural holding. The entry relating to it appears to have been made under Rules 128 and 278. It will appear, therefore that the entry relating to the land in dispute was made merely as directed by the rules and was not meant to be a decision as to the rights of the landlord and occupants respectively.