SITA RAM Vs. SECRETARY OF STATE

JUDGEMENT

(1.) In 1900 the Local Government on behalf of the Government of India acquired under the Land Acquisition Act of 1894 a large area of land for the purpose of the Bengal and North Western Railway. By a contract of 18 July 1890 between the Secretary of State and the Bengal and North Western Railway Company, the Tirhut State Railway had been made over to the Bengal and North Western Railway Company for management by the company, with the proviso that the land which might be acquired for the purpose of the railway should, unless it were actually required for railway purposes, be relinquished to the Secretary of State. The land acquired in 1900, apparently with some exceptions including the land in suit in the present case, was duly made over to the Bengal and North Western Railway Company for the purpose of the Katihar-Hajipur extension of the Tirhut State Railway. The land in question in the present suit is 1 52 acres out of Plot No. 7213 of the survey, contained in Plots Nos. 45, 46, 48 and 49 of the plan prepared at the time of the acquisition. It appears that the land was not made over to the railway, since, when the Record of Rights was prepared in 1906 , it was recorded as the raiyati holding of one Meghu and as part of the Dharampur estate. This entry appears to have been erroneous because it has been found that the land was acquired in 1900; and by the acquisition under the Land Acquisition Act and the statutory rules of 1895 made by the Government of Bengal under the Act, the acquired land became a part of a revenue free estate, and it ceased to be part of the Dharampur estate which was in the possession of the Maharaja of Darbhanga. Some time after 1906 one Ram Rachhya Singh purchased Maghu Gangota's holding which according to the defendants was transferable by custom; and in 1924 the son of Ram Rachhya Singh sold it to the defendant of the present suit. The area of 1.52 acres according to the survey forms a part of Plot No. 7213 with a total area of 4.39 acres, held under the Dharampur estate; and it appears that these purchasers in due course paid rent and were granted receipts by the Maharaja of Darbhanga who is the zamindar of Dharampur. In 1929 the Secretary of State, joining with the Bengal and North Western Railway Company, instituted a suit for ejectment; of the cultivators from the area which was acquired in 1900. The Subordinate Judge by his appellate decision in the suit has found that the Secretary of State was entitled to recover possession of this land, and that the defendants could not claim to be bona fide tenants entitled to the protection of the provisions of Ch. 5 and 6, Ben. Ten. Act. The defendants have preferred a second appeal from this decision.

(2.) We have the findings of fact that this, land was duly acquired under the Land Acquisition Act in 1900: that the defendants have been cultivating it since 1924 without any title from the Secretary of State or from the Bengal and North Western Railway as a part of a larger holding occupied under the zamindar of the Dharampur estate, and that they have been recognized as raiyats by the zamindar.

(3.) Mr. Sri Narayan Sahay on behalf of the appellant argues in the first place that the suit should be regarded as barred by limitation, because the party entitled to sue for recovery of possession is the Bengal and North Western Railway who hold as lessees of the Secretary of State. In para. 2 of the plaint it has been stated that after the acquisition of the land, the Secretary of State for India under the terras of the lease made over the land to the Bengal and North Western Railway Company for the management of the Tirbut State Railway. Mr. Sri Narayan Sahay suggests that by the use of this term the plaintiffs admit that the Bengal and North Western Railway Company are their lessees, but whether the use of the word "lease" for the contract between the Secretary of State and the Company is correct or not, it is clear that the tenant of the Company is, as the learned Subordinate Judge has pointed out, something very different from that of a lessee under the Transfer of Property Act. It is clear from the terms of the contract that the Secretary of State undertakes to obtain land for the Company as the Company shall require it, but only so much as shall be required; and land not utilized for railway purposes is to return to the possession of the Secretary of State. Whatever may have been the declared purpose for the acquisition of the land now in suit, it appears that if the Bengal and North Western Railway Company desire to obtain possession of it, they must ask the Secretary of State to make it over to them and it is the Secretary of State who must sue, if a suit should be necessary, to obtain possession of land which has never actually been under the management of the Company. It is clear throughout the contract that the land, whether utilized for railway purposes or not, remains the property of the Secretary of State and as possession of the land now in suit must be recovered by the Secretary of State before it can be made over by him to the Railway Company, the learned Subordinate Judge acted correctly in applying Art. 149 of Schedule 1, Limitation Act, in deciding the rights of the parties in this case.