LALIT MOHAN MUKHOPADHYA Vs. HARA MOHAN BANIKYA CHOWDHURY

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff whose suit for khas possession has been dismissed by the lower appellate Court. The plaintiff claims the suit land, which is in village Kurasi, as appertaining to his estate No. 5642 of the Faridpore Collectorate (formerly numbered as No. 631 of the Dacca Collectorate). There is no dispute now that the plaintiff is the proprietor of the said estate, although it was at one stage of the suit contended by defendant 1, that he had no beneficial interest therein. The said estate was sold for arrears of revenue on 29 June 1881 and purchased by Girish Chandra Sen and others, hereinafter called the Sens, from whom the plaintiff has derived his title. Shortly after their purchase the Sens applied for measurement of the lands appertaining to their estate under Section 38, Act 8 of 1869 (B.C.) and proceedings started under the said section were duly completed on 19 March 1885. The application is not on the record, but the Robakari of the Deputy Collector and the Jaripi chita prepared by him are on the record. They are Exs. 5 and 6 respectively. The Jaripi chitta records defendant 8 as tenant under the proprietors of estate No. 5642 holding at a rent which works out at Rs. 3. As the contentions of the parties to this suit depend on the said documents it will be necessary to deal with them in detail hereafter. The plaintiffs case is that defendant 8 and 9 held the lands in suit, which is recorded as Dag No. 241 of the Cadastral survey of the aforesaid village, as ordinary occupancy raiyats at a rental of Rs. 3 with no right of transfer. His further case is that the said plot which corresponds to plots Nos. 32 and 33 of the aforesaid Jaripi chitta, was purchased by one Radhagovinda Manikya, the father of the principal defendants, in execution of a mortgage decree. Hence he sues for khas possession on the basis of abandonment. Of the principal defendants, defendant 1 alone contested the suit. He admitted that defendants 8 and 9 mortgaged the lands in suit to his father and that his father purchased them in execution of his mortgage decree. He sought to defeat the plaintiff's claim on two grounds, namely (1) that the lands in suit do not appertain to the plaintiffs estate and that defendants 8 and 9 were not his tenants. He made a positive statement that they appertain to Estates No. 392 and 393 of the Dacca Collectorate and that defendants 8 and 9 held immediately under the proprietors of the said estates. (2) His further defence was that the tenancy of defendants 8 and 9 was not an occupancy holding but a permanent mirasi tenure held at a rental of Rs. 2. The record-of-rights prepared under Ch. 10, Ben. Ten. Act, regards the lands in suit as permanent mirasi tenure held under the proprietors of Estates Nos. 392 and 393 at a rental of Rs. 2. Both the Courts below have held that they appertain to the plaintiff's estate. The lower appellate Court has further held that the lands are the lands of the tenancy recorded as plots 32 and 33 of the Jaripi Chitta (Ex. 6). The first Court held that defendants 8 and 9 held the lands as ordinary occupancy raiyats and the sale of the entire holding had amounted to an abandonment of the holding on the part of defendants 8 and 9.

(2.) The lower appellate Court has held that there is no evidence at all to rebut the entry in the record-of-rights that the lands in suit constitute a permanent mirasi tenure. The suit was accordingly dismissed. Dr. Basak who appears for the plaintiff-appellant contends that the proceedings taken under Section 38 of Act 8 of 1869 are conclusive and preclude the defendants from contending that defendants 8 and 9 were other than ordinary occupancy raiyats. He further contends that in any event Exs. 5 and 6 are cogent evidence to prove his client's assertion that the tenancy is an occupancy holding and that the learned Subordinate Judge has entirely overlooked this evidence in holding otherwise. Mr. Bose for the respondents contends that those documents are not even relevant and that the Subordinate Judge was right in saying that there was no evidence to rebut the particular entry of the record-of rights. To decide the points raised in the appeal it is necessary to examine the precise scope of Secs.38 and 39 of Act 8 of 1869 (B. C) and the contents of the robakary Ex 5. These sections are reproductions of Section 10 of Act 6 of 1862 (B.C.), which it replaced with a little change which is not material to this case, the difference being that whereas under Act 6 the Collector initiates the proceedings on the application of the owner of the estate or tenure and carries the proceedings to an end, under Act 8, the proceedings begin with an order of a civil Court, the measurement and investigations are made by the Collector on reference from the civil Court, and the proceedings terminate with the records of the Collector being filed in the civil Court. I deal with the relevant provisions of Act 8. Under Section 25 the proprietor of an estate or tenure has the right to make a general survey and measurement of the lands comprised in his estate or tenure unless restrained by express engagements with the occupants of the lands. If he is opposed he has the right to apply to the civil Court having jurisdiction under S 37, which has to adjudicate on his right to make measurements, and if his right is established the Court is to enjoin or excuse the attendance of the "under tenant or raiyat" at the measurement.

(3.) If a proprietor of an estate or tenure however is unable to measure the lands of his estate or tenure and so fails to ascertain who are the persons liable to pay him rent he has the remedy prescribed in Section 38. He can set in motion the civil Court by an application and if the civil Court is satisfied that he was unable to measure by his own agency the civil Court has to grant the application and the further proceedings are continued by the Collector. That section however contemplates two classes of applications, which for brevity's sake, I will call the general and special application. The scope of the proceedings are determined by the nature of the application. If an order is passed by the civil Court in favour of such a proprietor on a general application the Collector's power is limited to two matters and two matters only. (1) He is to measure the lands and (2) to record the names of the actual occupants of the lands. These occupants may be persons between whom there may have been at the time of the Collector's measurement no relationship of landlord and tenant in respect of the lands occupied by them or not; but the Collector has not to ascertain whether there is such relationship or not Proceedings on such an application will ordinarily be beneficial to the proprietor when his case is that either his tenants have encroached upon his khas or unsettled lands or have taken possession of alluvial formations or when he wants to ascertain the names of persons in occupation and the quantity and particulars thereof with a view to assess rent. Where his object is to ascertain the names of persons who are his tenants, the particulars of the land in their occupation, the amount of rent payable by them with a view to realise rent already assessed, the special application provided for in the section is the appropriate remedy. The scope of the Collector's investigation is then enlarged. He has then not only to do what he is required when a general application is made, but has to ascertain the persons liable to pay rent and the amount of rent payable by them: W.G. Crowdy V/s. Poorum Singh (1874) 22 WR 480, The Collector has no right to determine what the rent ought to be but simply to find out what the existing rent is. A special application under the section would not ordinarily be made by an old proprietor of an estate, because his record would be sufficient to enable him to realise rent and a proceeding under this part of the section would ordinarily be to him a costly luxury. But such a proceeding would be very useful to a purchaser at a revenue sale, who has no collection papers to go upon. (I exclude those special cases where a purchaser at a revenue sale is able to secure from the defaulting proprietor or his amlas the collection papers). Such a purchaser may for his benefit require the names and particulars of all tenants holding directly under him and who are to pay him rent, whether they be patnidars, tenure holders or raiyats or he may require only the names and particulars of raiyats directly holding under him, trusting for getting information as to the particulars of patnidars and tenure-holders who are to pay him rent to other sources.