JAGAT MOHAN PRASAD Vs. LWBION

JUDGEMENT

(1.) The facts of the case out of which this appeal has arisen are these: The plaintiff instituted a suit for recovery of possession of a piece of land against his landlord, on the allegation that the latter had settled it with him under an unregistered patta and thereafter having taken a proceeding under Section 87, Bihar Tenancy Act, on the allegation that the plaintiff had abandoned it, took forcible possession of it. The plaintiff's case was that having taken settlement of the land from the respondent he had settled it with under raiyats and had enjoined them to make a payment of rent to the defendant. It was therefore urged that the proceeding taken by the defendant purporting to be under Section 87, Bihar Tenancy Act, was fraudulent. The defence was that the land was never settled with the plaintiff, as there was a stipulation that the plaintiff would pay salami and then take registered patta. As this was not done, the unregistered patta remained inoperative and though it was under the circumstances riot necessary for the defendant to take any proceeding under Section 87, Bihar Tenancy Act, he did so only by way of precaution. The trial Court disbelieved the defence and held that the land was actually settled with the plaintiff who was in possession of it, that he never abandoned it and that the defendant wrongfully dispossessed him from it. On these findings the trial Court decreed the suit. These findings of fact have been affirmed on appeal by the learned Subordinate Judge. He has however dismissed the suit on the ground of limitation, holding that as there was nothing to show that the plaintiff was a settled raiyat of the village, therefore his status was that of a non-occupancy raiyat and as the proceeding was taken under Section 87, Bihar Tenancy Act, and the required notice was published on 19 December 1931, the suit which was instituted on 22 June, 1932, was barred by limitation under the provisions of Section 87 of the Act. The plaintiff has preferred this second appeal.

(2.) Two points have been urged before me. One is that Section 87 of the Act applies only, in cases where there has been actual abandonment, and not in a case in which without abandonment the landlord fraudulently publishes a notice under that section. I am unable to accept this contention. A reading of the section as a whole clearly shows that whenever a landlord takes a proceeding under Section 87 of the Act and a notice is published in conformity with it, the tenant must have the matter settled within the time prescribed in the section. Taking steps under that section is not obligatory upon the landlord, but if he takes possession of the holding otherwise than in conformity with that section, he does so at his own risk and in that case he will not get the advantage of a shorter period of limitation prescribed for suits by the raiyats. There are observations in the decision of Mookerjee, J. in Suresh Chandra Mookerjee V/s. Nesa Bibi (1910) 11 CriLJ 433, to the effect that the Legislature deliberately prescribed short periods for the institution of a suit by a raiyat who finds that notice has been published about his abandonment, where in fact there has been no abandonment. The section clearly specifies that the suit must be instituted within the time prescribed therein and if the raiyat satisfies the Court that there was no voluntary abandonment, the possession of the land will be restored to him, thereby indicating that the section applies even in those oases where there has been no abandonment. The reason is obvious. As I have said, the Legislature has all along been particular in providing that disputes between landlords and tenants should be settled in as short a time as possible so that the title of the raiyat in respect of the land may not remain undecided for a very long time. Therefore, in my opinion, the contention of the learned advocate in this respect must be rejected.

(3.) The next contention of the learned advocate has been that the learned Subordinate Judge was not justified in holding that notice was published on 19th December 1931. According to the statement in the plaint the notice was served on 22nd December. Now the publication of notice being admitted, the only question before the learned Subordinate Judge was whether it was published on 19th December or on 22nd December. The date of the report of the serving peon is 22nd December. But the learned Subordinate Judge referred to the date, 19th December, which is mentioned below the marks of thumb-impressions of the various persona on the back of the notice just above the report of the peon, and he concluded that that date was the date on which the peon visited the spot and took steps for publication and posting of the notice as required by the rules framed by the Local Government. The report along with the notice was produced by the plaintiff and was exhibited at his instance, It was open to the learned Subordinate Judge as a Court of fact to draw such inference as could be drawn from the various parts of the exhibit before him and the learned Subordinate Judge drew the inference that the notice was published on 19 December, and that the report was written on 22nd December. He had materials on which he could base that finding, which cannot be interfered with in second appeal. I dismiss this appeal with costs. Leave for a Letters Patent appeal is applied for and is granted.