SECRETARY OF STATE Vs. BABU BENI PRASAD SAHU

JUDGEMENT

(1.) This appeal by the plaintiff the Secretary of State, arises out of an action in ejectment with which was joined an alternative claim for the settlement of a fair rent. The land originally consisted of several plots but which are now amalgamated into holding No. 363. The plots were first Nos. 580 and 581 which equal plot No. 280 and being the subject-matter of two unregistered leases must be treated on the footing of oral agreements The other plots which were the subject-matter of three registered leases dated respectively January 22, 1918, for the term "until the new settlement of the Palamau Government estate was made" at an annual rent of Re. 1-6; the second lease (Ex. 1-b) dated September 29, 1920, being for a term of 30 years or until the new settlement of the town of Daltonganj was made (whichever is less) at an annual rent of Rs. 5-14; and the third lease (Ex. 1-c) of the same date and for the same period at a rental of Re. 1-3. As regards plots Nos. 580 and 581, which are now known as plot No. 280 under the oral agreement, the plaintiff's claim has failed so far as ejectment is concerned, but the Judge has assessed the rent at Rs. 3 4. With regard to the plots, the subject matter of the three written leases, the plaintiff's claim succeeded and the Court held the plaintiff entitled to eject the defendants failing execution by them of new leases at an annual rent of Rs. 27. As regards plot No. 280 (equals Nos. 580 and 581) three could be no doubt that the Court had no jurisdiction to assess rent and thus make a bargain between the parties. With regard to these plots which are the subject-matter of the leases, it is contended that other considerations apply with regard to this part of the relief claimed, and with that contention I propose to deal later.

(2.) We are not concerned in this case with the situation of the plots in dispute in the town of Daltonganj as this was a matter which was to be considered only with regard to the value of the land and the assessment of fair rent. The facts relating to these plots are as follows: Plots No. 580 and 581 (now known as. plot No. 280) were purchased from one Eda Sheikh. Eda Sheikh was recorded in respect of this land in Mr. Sunder's settlement which commenced in 1894 and concluded in 1896. Plot No. 580 was purchased from the son of Eda Sheikh on May 10, 1910, and plot No. 581 was purchased in a Court sale in execution of a decree in 1903. Plots Nos. 233, 230 and 271 were the subject-matter of the lease dated September 29, 19-0 (Ex. 1-B), and the present survey plot No. 505 was the subject-matter of the lease (Ex. 1C) of the same date. The plots dealt with by the lease (Ex. 1-B), September 1920, were also the subject-matter of a lease dated July 6, 1914, to defendant's father Srikishun Sahu, and it was after Srikishun's death that the fresh lease of September 1920 was granted. The Judge in the Court below has held, contrary to the defendant's contention, that the Chota Nagpur Tenancy Act did not apply but that the matter was governed by the Transfer of Property Act, and in regard to plot No. 280 (equals Nos. 580 and 581) he has held that the defendants have got a permanent tenancy drawing the inference to that effect from the circumstances of the case. With regard to the others, he has held that the plaintiff having terminated the tenancies by a notice to quit, is entitled to eject the defendant. These plots were the subject-matter of enhancement of rent at the time of Mr. Sunder's settlement. It is to be noticed in this case that Mr. Sinha on behalf of the Government and the learned Advocate on behalf of the defendant agree that the case is governed by the law of landlord and tenant, either under the Chota Nagpur Tenancy Act or otherwise and although khas mahal property is not to be determined by any considerations of the revenue law.

(3.) The first, contention advanced by the defendant is that the defendant has occupancy rights under the provisions of the Chota Nagpur Tenancy Act. There was no point raised by the defendant in his written statement in this connection and ho issue was settled. The argument is based almost entirely on the fact that in Mr. Sunder's Settlement Record, either the defendant, or his predecessor-in-title was recorded as an occupancy tenant. It was the contention of the defendant that as his father Srikishun Sahu held some tanr lands at Sahpur in which makai crops were grown, and holding admittedly homestead land at Daltonganj as ancillary to or in conjunction with agricultural tenancy, he would have rights of occupancy under Section 78, Chota Nagpur Tenancy Act. There is, in my judgment, no evidence of this; and, as the learned Judge has pointed out, even assuming that Srikishun had some tanr and in Sahpur that would not be sufficient to constitute him an agriculturist, holding his homestead land in Daltonganj as an agriculturist. The position shortly is this. It is admitted in all these cases that the Record of Rights has not the statutory presumption of correctness; at most it could be admitted in evidence under Section 33, Evidence Act, Mr. Sunder being dead, and therefore could only be used as some evidence in the case of the facts which it states. There is nothing else to support the defendant's contention in this regard, and there having been no issue raised in the Court below, and the plaintiff not having had an opportunity to adduce evidence as to the status of the defendant or his predecessors, it would be unjust in the circumstances to hold that the record which has no presumption of correctness established the plaintiff's contention. Furthermore, it has always been the case of both parties that the land was homestead or building land. That being so, the position of the defendant is to be judged apart from the Chota Nagpur Tenancy Act. The Judge has held that these tenancies are governed by the Transfer of Property Act. This, as I have pointed out in other appeals, is clearly an error, for the Crown Grants Act (XV of 1895) applies.