SAMBHSHIO MARKHANDI GAMPAWAR Vs. LAXMAN ZINGAJI MARAL

JUDGEMENT

(1.) THE question that arises for decision in this appeal and in the connected applications for revision, Civil Revisions Nos. 674 and 675 of 1938, is whether nazul Plot No. 3 in the town of Chanda is liable to attachment in execution of a decree. The plot is described as bari and has admittedly been cultivated by the judgment-debtors for many years. They claim that they have the right of an occupancy tenant therein and that the land is exempt from attachment under Section 12, C.P. Tenancy Act. In a previous decision about this plot Bose J. in Second Appeal No. 329 of 1935 held that the judgment-debtors held this land from Government to whom they made an annual payment, which was described as rent in the Nazul Settlement Khasra, and that they were therefore tenants of Government and must be occupancy tenants. He accordingly held that the plot was not liable to attachment in execution of a decree.

(2.) AT the Town Settlement of Chanda the judgment-debtors were granted a kisani patta, Ex. A-2. The printed form shows that it was granted to a raiyat sarkar paying land revenue thereon, and the land revenue was assessed at Rs. 13-12-0. There is however an entry against the khasra number 'maurusi'. In the Nazul Settlement Khasra (Ex. A-2) Rs. 13-12.0 is described as rent, and in the remarks column it is stated, "It is held on occupancy right since the year 1909." Section 56, Land Revenue Act, provides that all land is liable to the payment of revenue and such revenue is called 'land revenue." The Act then goes on to provide for the assessment of land revenue, but Section 98 provides that in respect of lands declared to be the property of Government the Settlement Officer shall, instead of proceeding as hereinbefore provided, conduct such operations as the Financial Commissioner may direct. Settlement Instructions No. 18 lays down the proper procedure to be adopted in Nazul Settlements, and the persons in possession are described as " occupants" and the payments they make are described as 'revenue.' The word 'maurusi' and the words 'occupancy right' found in Ex. A-2 appear to have come from the use of the word "occupant" in the Settlement Instructions. The definition of 'tenant' in Section 2(11), C.P. Tenancy Act, as a person who holds land of another person does not, in my opinion, include a person who holds land from Government, and the words " another person" are used in contradistinction to Government. The argument adopted by Bose J. in the case mentioned above would also lead to the conclusion that the raiyat of a survey number is the tenant of Government. What is paid in the present case is, I think, clearly land revenue, and it cannot therefore be rent; it was conceded that arrears were recovered as land revenue, whereas, if it were rent, a civil suit would be necessary to recover it. Again the term "landlord," as defined in Section 2(7), Tenancy Act, would not, in my opinion, include Government. The distinction between Government and proprietors is made clear in the Land Revenue Act. The mere fact that the word "occupancy" or "maurusi" is used in the Nazul Settlement records would not give the occupants a right to claim that the land was not liable to attachment in execution of a decree, and it seems clear to me that it was never intended by Government to deal with these persons as tenants governed by the Tenancy Act. Tenants under the Tenancy Act are recorded as such under Section 70, Land Revenue Act, but in proceedings under Section 98 of the Act of 1917 no such record is made. The appeal is therefore allowed with costs throughout. Counsel's fee in this Court Rs. 15. The civil revisions are also allowed with costs throughout but there will be no separate counsel's fee.