SOMAR RAM Vs. BUDHU RAM

JUDGEMENT

(1.) This appeal arises out of an execution proceeding. The appellants in execution of their money decree against the respondent wanted to sell certain properties of his described in khewat No. 3/3 and shamilat khewats Nos. 3/4, 3/5 and 3/7 of village Ahardih in the District of Hazaribagh. The interest held by the judgment debtor according to the Record of Rights is dwami thica , a peculiar tenure in Chota Nagpur. The judgment-debtor objected to the sale on the ground that his interest was not saleable. The executing Court, mainly relying upon the Sifton's Settlement Report of Hazaribagh where the incidents of dwami thica tenures are mentioned, allowed the objection and refused to sell the properties. This order has been upheld by the learned Judicial Commissioner. The decree-holders have preferred this appeal.

(2.) Mr. G.C. Mukharji, who has appeared on behalf of the appellants, has attacked the order of the Courts below on the following grounds: (1) The nature of the tenancy makes it transferable and the custom of non-transferability has not been proved. The settlement report is no evidence of custom. (2) Assuming that the dwami thica is not transferable, the protection is for the benefit of the landlord, and not that of the tenant. This restraint on the right of transfer does not apply to involuntary transfers. At any rate the tenure should be allowed to be sold, leaving it to the landlord to question the sale if he likes. (3) Whatever may be the incidents of thica dwami in general, this particular tenure has lost its character of non-transferability as it has been transferred from time to time. At any rate the judgment-debtor is estopped from questioning the saleability of this tenure. I shall take up the grounds in the order in which they have been mentioned. Regarding the first point the argument of the learned advocate is this. Dwami thica is a property. All properties are saleable unless exempted from sale. Dwami thica has not been exempted by Section 60, Civil P.C. If the landlord has created a tenure, and imposed a condition of non-transferability the condition is void, unless it is for the benefit of the landlord. Even if the condition be for the benefit of the landlord, nevertheless the tenure can be sold subject to the right of the landlord to avoid it. He relied upon Section 10, T.P. Act, and on para. 232 of Sifton's Settlement Report of Hazaribagh and contended that as the tenures of that district have in course of time become alienable no exception can be made in favour of the dwami thica which is a tenure. In order to determine the force of this argument it is necessary first of all to examine what a dwami thica is. The words "dwami thica" are not to be found in the leases of these tenures. It was introduced (if I may say so, coined) by the Settlement Department for a particular kind of tenure found in Chota Nagpur. This class of tenure has not been specifically dealt with in the Chota Nagpur Tenancy Act. When the settlement authorities found that there were tenure-holders who had non-resumable and heritable rights in their tenures and the rent was not fixed in perpetuity as that of mukarraridar, they called this class of tenure-holders "dwami thicadars". The incidents of such a tenure were considered in this Court in Tikait Krishna Prasad Singh V/s. Budhan Manjhi, AIR 1928 Pat 481 where Macpherson, J. pointed out that the name thica dwami in the Record of Rights in Chota Nagpur is given to a cultivating tenancy which partakes largely in its origin and development of a raiyati character and is in fact a raiyati tenancy which has grown into a tenure. In para. 195 of the Settlement Report the learned author says: The status of dwami in the Record of Rights has been restricted with a few exceptions not here material to cultivating tenancies which though they now must be interpreted as tenures partook largely in their origin and development of a raiyati character. They are in fact raiyati tenancies which have grown into tenures.

(3.) The same is the observation of another Bench of this Court in Jagdishwar Dayal Singh V/s. Bulak Mahto AIR1929 Pat 376. Therefore, it is clear that dwami thicas were at the time of their origin cultivating tenancies which under the peculiar circumstances of the locality have grown up into a tenure. The author of the Settlement Report has recorded on the basis of what he found in the locality that on account of the fact that they were in origin cultivating tenancies, they are by custom not transferable. The learned advocate, however, has contended that the Courts below were not justified in relying upon the Settlement Report for proof of the custom of non-transferability of the dwami thicas. He argued that the report could not be used in evidence unless the author of the report is examined. In my opinion, this argument is untenable. Mr. (now Sir James) Sifton, till recently the Governor of Bihar, was the Settlement Officer in the District of Hazaribagh. He was deputed by local Government to investigate and record the incidents of the tenancies of the district and the customary rights and liabilities of the holders thereof. His report, which is an official book, is admissible under Section 35, Evidence Act, as the statements in the report were made in discharge of an official duty, and preparation of the records was enjoined on him by law, that is, the Chota Nagpur Tenancy Act. Then Sec. 4.8, Evidence Act, enacts that: When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant.