ANUP MAHTO Vs. MITA DUSADH

JUDGEMENT

(1.) This case comes here on appeal by the defendant from a judgment in second appeal of the High Court at Patna reversing the judgment and decree of the lower appellate Court and giving to the plaintiffs a decree for ejectment. The plaintiffs' case was that they were raiyats within the definition in the Bengal Tenancy Act, 1885, that is to say, that the suit lands had been acquired by the original grantee for the purpose of cultivating them himself and that therefore their tenant the defendant was an under-raiyat and so liable to ejectment on the statutory notice under S. 49 of the Act. The defendant's case was that the suit lands had been acquired by the original grantee for the purpose of collecting rents, and that therefore the plaintiffs were tenure holders and he himself was a raiyat holding under them and was not liable to ejectment as he had acquired occupancy rights under the Act.

(2.) In that case the further question arises whether the defendant is precluded by S. 181 of the Act from acquiring occupancy rights in the lands by reason of the fact that they are held on service tenure, as has been ruled in some Calcutta decisions which have been followed by the High Court in this case. This is a question of general importance, as the effect of these decisions is largely to exclude this class of raiyats from the benefits of the Act, and now comes before Board for the first time. The plaintiffs are jagirdars holding the suit lands and other lands in neighbouring villages as a revenue free jagir for watching certain roads. The grant probably dates back to the days before the cession to the Company. It is stated in the introduction to Mr. Field's Regulations, p. 53, that a large number of jagirs were created in Behar in the time of Shah Alam and his immediate predecessor during the anarchy and decline of the Mogul Empire. This may account for the great number of small jagirs of this kind in the immediate neighbourhood as mentioned in the judgment of the High Court. According to the same authority such grants when made by the Emperor were assignments not of the lands but of the revenue. As the lands being revenue free were not included in the Permanent Settlement with the local zamindar they have been recorded as the property of the Crown. The first question therefore already stated is whether the original grantee of the lands on service tenure was a tenure-holder or a raiyat within the meaning of the Act?

(3.) The Record of Rights was against the plaintiffs as they were recorded as tenure-holders, and S.103-B of the Act provides that every entry therein is presumed to be correct until the contrary is proved. Ordinarily therefore all the Courts have to do with the record is to apply this presumption as directed by the section. Unfortunately in this case the certified copies of extracts from the Record obtained in 1922 for use at the trial were not wholly in English as they should have been in what purports to be the English version of the Record which was completed in 1910. The printed forms are in English, but some of the entries contain vernacular terms taken apparently from the vernacular version of the Record which is necessarily the version in common use. Whatever be the explanation, the use of these vernacular terms has enabled the plaintiffs to set up successfully in the two first Courts that the Record was self contradictory and that it was Impossible to raise the presumption that the plaintiffs were tenure-holders, while the High Court has gone further and held that the presumption arising on the Record was that the plaintiffs were raiyats. Prima facie nothing can well be less likely than that the Record of Rights, if properly understood, should be self-contradictory prepared as it is in accordance with rules framed by the Local Government under the Act by a revenue officer familiar with its provisions and on printed forms supplied for the purpose.