KALI SINGH Vs. MATRU SINGH

JUDGEMENT

(1.) The only question to be decided in this appeal is whether the plaintiff is entitled to recover possession of the lands of Khatas Nos. 71, 95 and 96 from the contesting respondents. This question arises upon the following facts: Sometime in June 1926 tauzi No. 2940 in village Kaithwan was sold for arrears of revenue and purchased by one Azizul Hakim, a pleader practising in Monghyr. On 9th November 1926 the plaintiff purchased an eight annas share out of the proprietary interest in this tauzi and the remaining eight annas was purchased sometime later by defendants 47 and 48. The plaintiff, after his purchase, served a notice upon the contesting respondents intimating to them of his intention of cancelling the mukarrari deed which had been executed by a co-sharer proprietor in July 1878. The plaintiff's case was that this mukarrari constituted an encumbrance on the proprietary right and, as a purchaser at a revenue sale, he was entitled under the revenue sale law to avoid it. Sometime afterwards the plaintiff brought the present suit in which one of the reliefs claimed by him was that he was entitled to possession of the lands of the disputed khatas inasmuch as these lands were the bakasht lands of the malik, and the mukarrari interest being liable to be avoided the defendants could also be compelled to give up possession of these lands to the plaintiff. The case of the contesting respondents in this respect was that the lands were in their origin raiyati lands of the ancestors of these respondents and that they were accordingly entitled to retain possession of them even though the mukarrari interest might be avoided.

(2.) Thus the question which the Court below had to decide was a two-fold one: (1) whether the lands in dispute were in their origin raiyati lands in possession of the ancestors of the contesting respondents; and (2) whether, even if they were such raiyati lands, by the operation of the law of merger they had not become merged in the mukarrari interest upon that interest coming into existence, and, as such, were liable to be restored to the plaintiff on the annihilation of the mukarrari interest. The learned Subordinate Judge has held that the lands were raiyati in origin and that there was no merger. His decision upon both these points has been challenged by the appellant in this appeal. Dealing first with the question of fact that is to say whether the lands were originally raiyati lands, it seems to me to be clear that the decision of the trial Court upon this question is correct and ought to be upheld. The trial Court, in dealing with this matter, has referred both to oral and documentary evidence and particularly to certain admissions made by the plaintiff's own witnesses to the effect that the ancestors of the contesting respondents were raiyats and held some jote lands in the village before they became mukarraridars. The learned Subordinate Judge has pointed out in this connexion that no attempt has been made on behalf of the plaintiff to show that the ancestors of the contesting respondents held any lands other than the disputed lands. This fact by itself might not be regarded as conclusive: but the learned Subordinate Judge has also referred to the khasras prepared in certain old partition proceedings of 1871, 1882 and 1886 which show that the disputed lands were the raiyati lands of persons who have been proved to be the ancestors of the present respondents. In my opinion this is the strongest argument against the plaintiff; and it is noteworthy that the only way in which the plaintiff has tried to get over it was by contending that the khasras are not admissible in evidence. The learned Subordinate Judge, however, has elaborately dealt with this question, and after a review of certain decisions has expressed the view that the khasras are admissible in evidence at least as showing the history of the plots in question before the creation of the mukarrari. There is another point which, though not referred to by the learned Subordinate Judge, is raised on behalf of the respondents and it is that as these khasras were prepared in proceedings to which old proprietors were parties, the plaintiff who claims now to be one of the proprietors is bound by admissions contained in them as, those made by his predecessors-in-interest. Mr. Pal who appears for the plaintiff contends that the plaintiff being a purchaser at a revenue sale is not bound by all the actions of the previous proprietors. In my opinion, even though Mr. Pal may be correct in this last contention of his, there is no doubt that the batwara khasras were admissible in evidence as showing the previous history of the lands, and the learned Subordinate Judge was justified in basing his decision upon them. Mr. Pal contended that the disputed lands being recorded in the record of rights as bakasht, it should have been inferred that they were the lands of the proprietors and not of the mukarraridars. In my opinion, however, this contention cannot be accepted, because it is well known that even the lands in possession of mukarraridars are sometimes loosely described as bakasht and a mere entry in the record of rights which was prepared sometime in 1910 describing the lands as the bakasht of the mukarraridars is by no means conclusive to show that the lands were originally the lands of the proprietors and that they were never the raiyati lands of the respondents ancestors. I think therefore that the learned Subordinate Judge has rightly found that the disputed lands were the raiyati lands of the ancestors of the respondents.

(3.) The next question is whether there was any merger upon the acquisition of the mukarrari right by the respondents ancestors in the year 1878. It is clear that there could not have been any merger in 1878, because at that time the mukarrari deed was obtained in respect of a small share in the proprietary interest from a fractional co-sharer. This much is practically conceded by the learned advocate appearing on behalf of the appellant; but he contends that the merger took place in 1886 when the share of the fractional co-sharer who had created She mukarrari was converted into a separate and independent tauzi. But the authority cited before us is against such a contention. A Division Bench of the Calcutta High Court held in Jogendra Krishna Roy V/s. Shafar Ali AIR 1928 Cal 373 that: Where the proprietor of an estate grants an occupancy raiyat thereof a permanent lease, such grant has not under the general law the effect of extinguishing the right of occupancy possessed by the raiyat, and so render him liable to eviction as it is inconceivable in such a case to ascribe to the tenant an intention of foregoing a right so highly prized as the occupancy right on the acquisition of the right of an intermediate holder.