MT HALIMAN BIBI Vs. MUHAMMAD TAJAMUL HUSSAIN

JUDGEMENT

(1.) This is an appeal from the decision of Mohammad Noor J. arising out of an action for the recovery of 04 acre of land with a house thereon which at one time was in possession of one Bhajani Mahalik, who was chandnadar. The appellant before my brother, Mohammad Noor, was defendant 2. One of the questions of fact decided by the Courts below was whether the son of Bhajani Mahalik predeceased him or whether he survived him and in his turn became the chandnadar. It was originally recorded in the Provincial Survey, as I have already indicated, in the name of Bhajani Mahalik. In the current settlement it was recorded in the name of defendant 1, Sunai Bewa, in other words, widow of one Bama Mahalik, the son. On 19 December 1932, defendant 1, the widow, executed a kobala in favour of defendant 2.

(2.) There were two other transactions a few days later, that is, on 11 January 1933, which have been held to be merely transactions to cover up the true nature of the transaction of 19 December. In other words, as I understand the judgments of the Courts below, they were transactions one of mortgage and the other of sale of a lesser area of the land, which, if taken at their face value, would lead one to suppose that the whole of the land, the subject-matter of the tenancy, had not been transferred, and having regard to the events which happened, this is explicable on the grounds that one of the contentions put forward by the defendant was that the holding had not been abandoned. One of the arguments on behalf of the parties in the Courts below was that this tenancy was a mere tenancy-at-will. There has been a finding against that based upon a decision of this Court in Jahabaj Khan V/s. Srikrishna Dey A.I.R (1936) Pat. 29 where it was held that the tenancy was not a tenancy-at-will. Sub-section (2) of Section 236, Orissa Tenancy Act, provides: Save as otherwise expressly provided in this Act, the incidents of the tenancy of a chandnadar shall be regulated by local custom or usage and his rent shall be liable to re-assessment on each revision of land revenue settlement.

(3.) The character of such tenancy can be gathered from the definition in Section 3, Sub-section (3): "Chandnadar" means a person holding land which has been recorded as chandna in the course of a settlement of land revenue, and for which rent has been fixed for the term of that settlement, and includes also the successors in interest of such a person.