RAM BUJHAWAN SINGH Vs. RAM RANVIJOY PRASAD SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the Maharaja Bahadur of Dumraon and two other persons were the plaintiffs. The latter asserted that they had taken settlement of the land in suit from the Maharaja Bahadur in 1936, and that after they had taken possession of it they were forcibly evicted by the defendants. The defendants then claimed the land as part of a considerably larger area, which had been settled with them in 1908, by the manager of the Dumraon Raj which was then under the Court of Wards. It has been found, and it is not disputed, that the land was, in fact, part of certain land which was settled with the defendants in 1908, and that for three or four years after 1908 they paid rent to the manager of the Court of Wards and were granted receipts. It appears that in or about 1911 one Lalmohan Thakur instituted a suit against the defendants in which he sought for a declaration that the land, which had been settled with them by the manager of the Court of Wards on the sup. position that it was situated in Sheopurdiar, was really situated in Dubha Taufir, and vas part of a gujasta holding which belonged to him. THIS suit was decreed, but an appeal was preferred against the decree and was successful. Shortly afterwards, the Maharaja Bahadur of Dumraon instituted another suit in which he impleaded the present defendants and a large number of other raiyats and also the Secretary of State for India in Council. In this suit he asked for a declaration that certain settlements made by the manager of the Court of Wards were not binding on him. THIS suit was decreed in 1924, and prior to that, in or about 1918, the land in suit and a large area of other land round about it had diluviated. It began to re-appear on the other side of the Ganges in or about 1931. It is said that immediately afterwards a proceeding under Section 145, Criminal P. C., was instituted, and that the whole of this land was attached and, for a period of five years, was settled annually. 3. The defendants denied this and asserted that they had been in possession of the land in suit since 1981 and had not, in fact, taken forcible possession of it in 1930. The learned Subordinate Judge has come to the conclusion that this was not so, and for the purposes of the present appeal the point is, in any case, of no importance whatever. It is obvious that if the land in dispute was part of the subject-matter of the suit which was instituted by the Maharaja Bahadur of Dumraon in 1916, the decision in that suit operates as res judicata. The learned Munsif, who however, dealt with the point in a very summary manner, decided it in favour of the defendants. 4. The learned Subordinate Judge went into the matter more fully and carefully and came to an opposite conclusion. After having read and considered the judgment, I am satisfied that the reasoning of the learned Subordinate Judge is sound, and that the conclusion at which he arrived was correct. In this situation the other point which was taken by the learned advocate for the appellants, and which is one of some difficulty, does not, strictly speaking, arise. What was contended was that from 1908 to 1918, when the land in suit diluviated, the defendants were tenants of the land, and that their tenancy did not and could not, in law, come to an end when, by the change in the course of the river, they were for a number of years prevented from making any use of the land. 5. Reliance was mainly placed on the decision of the Allahabad High Court in Mazhar Rai V/s. Ramgat Singh (96) 18 All. 290. That decision was, however, based on the Rent Acts applicable in the United Provinces and is at variance with the earlier decision of the Calcutta High Court in Hemnath Dutt V/s. Ashgur Sindar (79) 4 Cal. 894. It is well-settled that when, in consequence of its being sub-merged or otherwise, land ceases temporarily to be capable of use and enjoyment, the owner of the land does not lose his rights in it; see Leigh V/s. Jack (1880) 5 Ex. D. 264, a decision which has been followed by the Courts in India. An occupancy raiyat has a right of property in his holding, that is, a right which is and always has been capable of being converted into money or something else of value. On general principle, therefore, there is no reason why a raiyat, having a right of occupancy in land, should lose that right merely because the land diluviates. 6. In Hemnath Dutt V/s. Ashgur Sindar (79) 4 Cal. 894, it was, however, held that in such a case, in order to preserve his occupancy right, it was incumbent on the occupancy raiyat to continue to pay rent, although possibly a purely nominal or quit rent, for his land while it remained under water and was incapable of being worked to profit. As I understand the decision of the learned Judges, the occupancy raiyat in such a case was, in their view, bound to apply to the Court for a reduction in his rent; and if the Court did not suspend payment of the rent altogether, but merely reduced the rent payable, was bound to pay the reduced rent to the landlord. The decision appears to have been based on Section 6, Bengal Rent Act, 1859, and I respectfully think that it was correct. Section 21(1), Bihar Tenancy Act, as it now stands, is not so clear, and possibly the decision may have to be reconsidered, but I am inclined myself to think that it may still be good law. 7. A raiyat who does not have a right of occupancy in his holding stands, however, in this matter, in a very different position. Since 1885 such a raiyat has, to a large extent, been protected against rack-renting and against arbitrary ejectment by his landlord. He cannot now be ejected except on certain specified grounds; and if his landlord seeks to enhance his rent to an extent which he regards as unreasonable, he is entitled to ask the Court to fix a fair rent and to continue in possession of his land on payment of the rent so fixed for a further period of five years. These provisions, no doubt, facilitate the acquisition by him of a right of occupancy, but they do not by themselves confer on him any right of property in his land. Such right as he has in it is not transferable or convertible into money or anything else of value, as is the right of the occupancy raiyat. 8. If he fails to pay an arrear of rent, he is liable to be ejected without compensation, except for any improvements he may have made on the land, whereas the holding of the occupancy raiyat must, in a similar case, be put up for sale and the excess of the sale-proceeds over the amount due as rent must be paid over to him. On general principle, therefore, it seems to me impossible to contend that which the land of a non-occupancy raiyat diluviates and when he ceases to pay any rent for it, he nevertheless retains some right in it which entitles him to resume possession of it when the river recedes and it reforms. A part from this, the land with which we are now concerned is diara land, and regard must be had to the provisions contained in Section 180 (1), Bihar Tenancy Act. 9. That section provides that a raiyat shall not acquire a right of occupancy in diara land until he has held the land in question for twelve continuous years. It also provides that until he acquires a right of occupancy in the land he shall be liable to pay such rent for his holding as may be agreed on between him and his landlord. It is important to notice that in the various Rent Acts prior to 1885 there was no special provision relating to diara land. 10. The result of inserting Section 180 in the Bengal Tenancy Act was, in my opinion, to leave the raiyat in possession of diara land for a period of less than twelve years in substantially the same position as the raiyat without a right of occupancy in his land was placed in by Act 10 of 1859. It is true that Sub-section (2) of Section 180 impliedly makes certain provisions in chap. 6 applicable to such raiyats, but these, it appears to me, do no more than safeguard the raiyat against ejectment so long as he pays the rent which his landlord has agreed to accept. In Srinibas Prasad Singh V/s. Ram Raj Tewari A. I. R. 1914 Cal. 673 the Calcutta High Court went so far as to hold that a tenant of diara land was not entitled to claim a reduction of rent when a portion of his land diluviated. Under Act 10 of 1859 a raiyat without a right of occupancy in his land was liable to be summarily evicted by his landlord. 11. A landlord may not now be entitled to evict a tenant of diara land in so summary a manner. It may be incumbent on him to sue the tenant in ejectment but the tenant cannot resist such a suit unless he can show that he is entitled to retain possession of the land under a contract entered into between the landlord and himself, which contract he has performed. The only other way in which he can resist such a suit is by showing that he has already been in continuous possession of the land for a period of more than twelve years and has thereby acquired a right of occupancy in it, which, as I had occasion recently to point out in Anand Prasad Singh V/s. Medni Prasad Singh A.I.R. 1944 Pat. 313 means a title to it by negative prescription. It necessarily follows that when a tenant of diara land who has not yet acquired a right of occupancy in it ceases to perform his part of the contract under which he was let into possession, he thereby forfeits any right to the land. 12. It is, I think, wholly immaterial that the reason why he failed to perform his part of the contract was that the land went under water and he was, therefore, unable to cultivate it and pay the rent. No decisions of this Court were cited at the bar and the only ones I have been able to discover for myself, which are of any assistance, are Kesho Prasad Singh V/s. Jirdhan Ojha A.I.R. 1916 Pat. 256 and Rudra Narain V/s. Kedar Nath A.I.R. 1937 Pat. 458. 13. In the former case a raiyat had paid rent for diara land for more than twelve years continuously but during part of that period some of the land had been temporarily submerged. It was contended that in respect of so much of the land he had not acquired a right of occupancy. The point was decided in favour of the raiyat on the ground that he had paid rent for the land and must, therefore, be deemed to have been in possession of it, although he had been unable to make any profitable use of it. Indirectly, therefore, I think the decision supports the view that when diara land is submerged and the raiyat ceased to pay rent, he thereby loses any right he may previously have had in it. In the latter case a raiyat who had a right of occupancy in certain land sued to re. cover possession of it. The land had been submerged and while it was under water no rent had been paid for it and on its reformation the landlord had taken possession of it and settled it with other persons. 14. The claim of the raiyat was resisted on the somewhat curious ground that there was a local usage by which an occupancy raiyat who ceased to pay rent for his land when it diluviated, forfeited his right of occupancy in it. For some reason or other the decision in 4 Cal. 8942 was not cited or considered. There are observations in the judgment of Madan J., which suggest that while he was prepared to hold that a raiyat who had not yet acquired a right of occupancy in diara land might by continuing to pay rent when his land or part of his land was submerged, acquire such a right, he was certainly not prepared to hold that such a raiyat who stopped payment of rent did not forfeit any right he may have had in the land before it was submerged. In my judgment, this appeal should be dismissed with costs. Fazl Ali, C.J. 15. I agree.