GAYA SAHU Vs. DEBARCHAN BHOKTA

JUDGEMENT

(1.) This appeal relates to a house site in a Gaontiai village in the dictrict of Sambalpur. One Ramachandra, a raiyat of the village, surrendered his raiyati land and homestead and abandoned them. Thereupon by arrangement with the zamindar the defendant took possession of the homestead. About six months later the: zamindar settled the raiyati land with the plaintiff and with the consent of the punches allotted the house site also to the plaintiff. The plaintiff now seeks to eject the defendant from the house site. The latter however set up a permanent tenancy in the site. He says that on the abandonment of the land by Ramchandra the zamindar settled the site with him permanently by a patta. The zamindar on the other hand, who has deposed in the case, states that he allowed the defendant to occupy the land on a monthly rental of 8 annas and that when the raiyati land was settled with the plaintiff in January 1931, the defendant promised to vacate the house site by the end of Chait of that year but that he has failed to do so. The first Court disbelieved the defendant's story that a patta had been granted to him or had been lost.

(2.) He decreed the plaintiff's suit on a finding that the house site had been allotted to him by the zamindar with the consent of the punches. The defendant appealed and succeeded before the Appellate Court which found that the site had been permanently settled with the defendant. The Appellate Court did not upset the finding of the first Court that the defendant had failed to prove the loss of the patta on which he bases his claim but contented itself with reciting that the defendant had stated that the patta was missing. The trial Court had examined the evidence with regard to this alleged loss and has come to the conclusion that that evidence did not support defendant's case that the patta had been granted or was missing. In the absence of reliable evidence that the patta was missing, secondary evidence of its contents is not admissible, so that in effect there is no evidence of the permanent nature of the tenancy which, it was open to the Appellate Court to accept unless it first came to a finding reversing the decision of the trial Court that the patta had not been lost.

(3.) Another question arises however, namely whether the settlement of the house site by the landlord with the plaintiff is valid. In Mr. Hamid's Final Report of the Land Revenue Settlement of the Sambalpur District, Appn. O.P. 30, relating to the wajib-ul-arz for Gaontiai villages of the district, it is noted that there is a village custom that the allocation of house sites will be done by the lambardar and punehas. The custom is stated to be that every cultivator is entitled to a site for his house free of rent. If he abandons his holding he Ioses his right to the house site but he is entitled to remove the building materials within one month of the site being given away to another. It was held by the Appellate Court that the custom requiring the consent of the punches for the allocation of the house site to a particular person does not apply to a site on which a house stands and which has been abandoned, but only to new sites and new villages.