BHOGILAL HIRACHADN BANI Vs. MEHTAR S/O. BANSHI GANDA MINOR GURADIAN AD LITEM COURT READER SUBORDINATE OF THE SECOND CLASS, JANJGIR

JUDGEMENT

(1.) THIS is plaintiff's appeal from the concurring judgment of the Additional District Judge, Bilaspur, in Civil Appeal No. 86A of 1939, decided on 4th April 1940. The facts are that the plaintiff obtained a decree in Civil Suit No. 28 of 1932 on 8th March 1932 in the Court of the Subordinate Judge, Second Class, Janjgir, against defendants 3 to 5 and defendant 1's father. On 28th June 1932 in execution of the aforesaid decree Re. 0-1-4 share of village Latesara, Ilaka Chandrapur, Tahsil Janjgir, was attached, and the decree was transferred for execution to the Collector who sold four pies share of the village for Rs. 200. The plaintiff got a sale certificate on 11th July 1936 and obtained formal possession of the four pies share on 15th September 1936. The plaintiff's case is that the four pies share which he had purchased in execution included the bhogra land pro rata and he therefore sued to recover possession of it. The defendants' contention was that the four pies share purchased by the plaintiff did not and could not under the law include bhogra land. The suit was dismissed on the ground that unless the bhogra land had been expressly sold the plaintiff could not become an owner of it. The lower appellate Court shared the view of the trial Court and held that the bhogra in the Sambalpur territory was a kind of sir land with the only exception that Section 49, Central Provinces Tenancy Act, did not apply to it, and that Section 8, T.P. Act, did not govern the case.

(2.) THE point for determination is whether the transfer of proprietary share of a gaontia in the village situate in Sambalpur territory does not include by necessary implication the bhogra land. The village Latesara is comprised in the Chandrapur-Padampur district which is included in the Sambalpur territory as defined in Section 2(16), Central Provinces Land Revenue Act, 1917. Section 2(17), which defines 'sir land,' includes land in Sambalpur territory recorded as 'bhogra' in the record of rights of the current settlement. Nevertheless, it is not fettered by the restrictions imposed upon the transfer of sir land by Section 49, Central Provinces Tenancy Act: see Sub-section (4) of Section 49. In the Sambalpur district the settlement was finally reported in 1884 and approved by the Government of India. The period of that settlement, which was very short, expired on 30th June 1888. In that settlement the gaontias were declared proprietors of their 'bhogra' holding, tenants on it being tenants at their will. They were further allowed to hold so much of it revenue-free as amounted to one-fourth of the village assessment. In these areas they have been given full proprietary right including right of transfer which carries with it the responsibility of collecting the revenue and performing the duties of village headman : see Baden-Powell's Land-Systems of British India, Vol. II. pp. 471-472 with foot-note 2. In para. 47 of the Land Revenue Settlement System of the Central Provinces by J.F. Dyer it is stated that gaontia was treated as a village headman who collected the revenue and the proprietary rights conferred on him were limited to his bhogra or home-farm, while the raiyats on land other than the home farm became Government raiyats paying the Government revenue assessed on their several holdings. The position of a gaontia described in the note, para. 8, under Section 4A, C.P. Land Revenue Act, 1881, as amended (C.P. Revenue Manual, vol, I, pp. 21 and 22 (1916)), is as follows: