KAMAKSHYA NARAIN SINGH Vs. TARA PRASAD BAKSHI

JUDGEMENT

(1.) In this appeal by the plaintiff the question for consideration is whether the defendant has obtained the right of occupancy in a tank and a bhinda in the following circumstances. On 9 Magh 1922 Sambat, corresponding to 1865 the ancestor of the plaintiff granted a mokarrari istamrari in village Gola to Bakshi Ram Das and Bakshi Loknath Das. It is well settled that such a tenure is resumable upon the death of the grantees. Bakshi Ram Das died several years ago, and Bakshi Loknath Das died in November 1937. The plaintiff's case is that on the death of Lok Nath Das, he resumed the village and came into khas possession of all the lands including the suit lands and that he settled the tank and the bhinda with one Keshar for three years 1994 to 1996 Sambat. But this lessee was disturbed in possession by the defendant and the dispute was carried to the criminal Courts who decided in favour of the defendant. The defendant's case was that during the subsistence of the mokarrari tenure the Chota Nagpur Banking Association in execution of their decree against Loknath Das purchased ten annas and eight pies share in this village in the year 1931, and on 20 April 1934 they sold that share to Ramprakash Lal, a pleader of Hazaribagh. On 2nd Asarh 1992 Sambat Ramprakash Lal by means of a hukumnama settled 5.14 acres of bakasht land, 14 acres of tanr lands and 3.66 acres of bhinda and pokhar (the lands in suit) with the defendant Taraprasad Bakshi on taking a salami of Rs. 400 and at a rental of Rs. 4 per annum. The defendant claims that as he was a settled raiyat in this village, he acquired the right of occupancy in 8.94 acres of land including the tank and the bhinda because he took the settlement for agricultural purposes.

(2.) The plaintiff in reply alleges that the purchase from the Chota Nagpur Banking Association was not a purchase by Ramprakhash Lal but was a purchase by the defendant's father, Jnardan Das (sic), in the farzi name of his sister's husband, Ramprakash Lal. He also alleged that the settlement was not a bona fide settlement and in any event no right of occupancy, could accrue in the tank and the bhinda so as to deprive him of taking possession on resumption of the village.

(3.) The Courts below have concurrently found that Ramprakash Lal was the real purchaser and was not a benamidar of the defendant's family. The trial Court also found that this was a bona fide raiyati settlement from the date of the hukumnama although the hukumnama is not available as it has been said to have been lost. As the defendant is found to be a settled raiyat of the village it follows, in the opinion of the Courts below, that he has acquired a right of occupancy. It should be observed here that there is no finding, explicit or implicit, that the settlement was bona fide in the judgment of the appellate Court.