JOGENDRA NATH DEY Vs. GOUR SINGH MURA

JUDGEMENT

(1.) The ancestor of the plaintiffs purchased Mauza Urma in execution of a rent-decree in 1880. The defendant held some lands in the mauza and in 1905 he gave a kahuliyat to the plaintiffs in respect of 23 plots of land at a consolidated rate of rent. He fell into arrears and on the 21st of December 1909, the plaintiffs brought a suit for rent under Act X of 1859 and obtained a decree. In the meantime on the 22nd December 1909 the Chota Nagpur Tenancy Act was applied to the District of Manbhoom. Execution was taken out of the rent-decree obtained by the plaintiffs and the holding of the defendant was sold on the 1st of August 1910 and purchased by the plaintiffs, who took delivery of possession from the Court in February 1911. In the meantime settlement proceedings were going on under a notification made in September 1909 (evidently under Chapter X of the Bengal Tenancy Act which then applied). The Chota Nagpur Tenancy Act having been applied from December 1909, the settlement operations were continued under this Act and the plaintiffs applied for the record of their names as owners by purchase of these 23 plots of land. The defendant set up a mundari khuntkati right and the Settlement Officer held in his favour and recorded him as the mundari khuntkatidar in March 1911, and the Record of Rights was finally published on the 17th November 1911.

(2.) The plaintiffs brought this suit in September 1911 for declaration of title to and recovery of possession of the said 23 plots. The Court of first instance gave a decree to the plaintiffs, holding that the entry in the Record of Rights was without jurisdiction. The lower Appellate Court has reversed the decree of the first Court, holding that the lands were really the mundari khuntkati lands of the defendant, that the Settlement Officer had perfect jurisdiction tip make the entry that he did make and that as these rights are not transferable the plaintiffs have acquired no right to the lands.

(3.) The rent suit of the plaintiffs was brought under Act X of 1859 and the decree was obtained under that Act. The execution of the decree was evidently applied for after the new Act came into operation. The execution proceedings must, therefore, be governed by the new Act, Deb Narain Dutt v. Narendra Krishna 16 C. 267. The new Act could not certainly affect pending proceedings and it did not affect the suit: but the suit terminated with the decree and the application for execution, although an application in the suit, was a separate proceeding. That seems to be the result of the Full Bench case. Now under this Act, Section 250 (1), a mundari khuntkati property is not saleable either by private sale or in execution. The property in this case has been found to be a mundari khunt-katidaii property first by the Settlement Officer and later by the lower Appellate Court, which relies upon the Record of Rights as conclusive evidence under Section 256. It is contended, however, that the Settlement Officer s order is without jurisdiction and the Record of Rights is, therefore, a nullity. Under Section 81 the Settlement Officer had to record (a) the name of the tenant or occupant, (6) whether the tenant was a tenure-holder, khuntkatidar, etc. Now the defendant was no doubt the occupant of the land at the time as found by the Courts below and the Settlement Officer was bound to record his name as the person in occupation. Being in occupation he claimed to be a mundari khuntkati tenant and the landlord said he was not. There was a dispute under Section 83 and the Settlement Officer decided in favour of the defendant. The Settlement Officer was competent to decide a suit under Section 87 as to whether the relationship of landlord and tenant existed or whether the land was held rent-free. There was no such suit in this case, but the provision for such a suit implies that the Settlement Officer has to decide such questions in making his record. I am not, therefore, prepared to say that the Settlement Officer had no jurisdiction to record the defendant as a mundari khuntkati tenant. If the property was of this description, it was not saleable and the sale that was held was ineffectual to pass any title.