BIBI KANIZ FATMA Vs. SKHOSSAINUDDIN AHMAD

JUDGEMENT

(1.) This is a second appeal by the plaintiff in a suit which was instituted by her in the Court of the Munsif at Madhubani to recover possession of 8 kathas out of plot No. 1367 and 12 kathas out of plot No. 1365 in village Bandhupati bearing tauzi No. 2456. In this tauzi one Fazlur Rahman, the husband of the plaintiff owned 8 annas odd share and the defendants second party owned 17 gandas odd share. On 14 July 1926 the defendant second party settled the disputed land by means of a registered patta with the defendant first party on taking a salami of Rs. 700. It is common ground that the settlement was made only a few days before the commencement of the batwara proceedings, the defendant second party being one of the applicants at whose instance these proceedings were started by the Collector. In the course of these proceedings, the disputed land was treated as bakasht and finally allotted to Fazlur Rahman, it being noted in the batwara papers that the land was in the possession of the defendants first party. Shortly after the batwara dakhaldehani Fazlur Rahman died and the whole of his estate came into the possession of the plaintiff partly by virtue of inheritance and partly by purchase and in 1937 she instituted the present suit alleging that the defendants first party had no right to remain on the disputed land and praying for recovery of possession.

(2.) The defendants first party as well as the defendant second party contested the suit and raised a number of pleas, one of which was that the disputed land had been settled by the defendant second party with the defendants first party with the consent of Fazlur Rahman and the plaintiff was accordingly bound by the settlement. It was further contended that the defendants first party being settled raiyata of the village had acquired an occupancy right in the disputed land and the plaintiff could therefore get the lands only subject to the rights of the defendants first party. Both the Courts below have found that specific parts of the bakasht lands of the village were in separate possession of different maliks before the commencement of the batwara in 1926 and in their respective judgments they have both referred to an application filed by Fazlur Rahman in March 1927 before the batwara officer alleging that the bakasht lands had already been divided among the maliks. Both the Courts have also negatived the case of the plaintiff that the settlement with the defendants first party was a farzi transaction. They have however differed cm the question as to whether the defendants first party could in law be ejected from the land. The trial Court after referring to Section 99, Estates Partition Act, and to the interpretation of that section in Mahadeo Prasad V/s. Jagarnath Prasad A.I.R. 1934 Pat. 173 held that the present case, being covered by that decision the plaintiff was entitled to take the disputed land free from the encumbrance created by her co-sharers by executing the lease to which reference has already been made. The facts of the case on which the Munsif relied were these: A cosharer malik had granted a mukarrari to certain persons of 4 bighas of bakasht lands held by him separately under a private partition. Subsequently, there was a collectorate partition of the estate whereby 3 bighas 16 kathas out of the 4 bighas was allotted to the patti of another cosharer. That cosharer brought a suit to recover khas possession of 3 bighas 16 kathas on the allegation that he was not bound by the mukarrari settlement and was entitled to have the land unencumbered with the mukarrari and it was held in that suit that Section 99, Estates Partition Act, applied and the plaintiff was entitled to take direct possession of the land allotted to his patti. Section 99 provides as follows: If any proprietor of an estate held in common tenancy and brought under partition in accordance with this Act has given his share or a portion thereof in patni or other tenure or on lease, or has created any other incumbrance thereon, such tenure, lease or incumbrance shall hold good as regards lands finally allotted to the share of such proprietor, and only as to such lands.

(3.) The learned Subordinate Judge, as I have already said, took a different view. He held that the plaintiff was not entitled to recover khas possession of the land, because in view of the provisions of Section 21, Ben. Ten. Act, the defendants first party, who are settled raiyats of the land, had acquired rights of occupancy in it and that being so, they could be ejected from the land only on the grounds specified in Section 25, Bihar Tenancy Act. On this view he allowed the appeal and dismissed the suit. This second appeal which was preferred in this Court by the plaintiff was first heard by my brother Chatterji and myself and we ultimately decided to refer it to a Full Bench. The questions which were formulated by us for decision by the Full Bench are these: (1) Whether a person inducted by one cosharer only on lands belonging to all the cosharers is a raiyat under the Bihar Tenancy Act and whether such a person can acquire occupancy right by being in possession of such land for 12 years or upwards. (2) Whether the mere fact that a cosharer landlord has been in sole possession of certain land for convenience or by mutual arrangement amongst the cosharer landlords is sufficient to raise an inference that he has implied authority to settle tenants upon the land for convenience of cultivation. (3) Whether in the circumstances of the present case the defendant first party can be said to have acquired the right of occupancy in the land and whether he can successfully resist the suit for ejectment.