GAJAR AHIR Vs. JITA PANDEY

JUDGEMENT

(1.) There is no substance in this appeal, as all the points pressed by Mr. D.N. Varma do not lead to the conclusion that the commutation officer had any jurisdiction to commute the rent of an under-raiyat who was holding at bhaoli rent.

(2.) It was argued, in the first place, that the appellants, who are under-raiyats, have acquired a right of occupancy and, therefore, had a right to apply for commutation. We do not agree with this contention because an under-raiyat remains an under-raiyat whether he has acquired a right of occupancy or not. By the amended Act, his status has not been increased, but his right to remain on the land has been conferred upon him.

(3.) It was then argued that the decision of the commutation officer was a bar to the present suit, as the plaintiff was a party to the commutation proceedings. The answer to this contention is that the absence of an objection by the plaintiff did not confer any jurisdiction on the commutation officer, who had no right to commute the bhaoli rent of a holding which was not an occupancy holding. That is to say, it was not in occupation of an occupancy raiyat--the appellants being under-raiyats. The decision in the commutation proceeding was not a bar to the suit because the commutation proceedings are ultra vires. 4 It was also argued that the decision in a rent suit, of which the judgment is Ex. C, also operated as a bar to the maintainability of the present suit. The present suit has been instituted because of the decision in the rent suit. This objection is also not sound. 5. Our attention was drawn to the cases of Ram Ran Bijoy Prasad Singh V/s. Ramayya Kuer A.I.R. 1946 Pat. 384, Ram Ranbijaya Prasad Singh V/s. Ram Kawal Upadhya A.I.R. 1949 Pat. 139. and Mahabir Choudhuri V/s. Jadunandan Prasad Singh A.I.R. 1945 Pat. 491. The nearest case which may seem to help the appellants is the case of Mahabir Choudhuri V/s. Jadunandan Prasad Singh A.I.R 1945 Pat. 491. On a perusal of the judgment of the learned Chief Justice in that case, it appears that he came to a clear finding that the tenant was an occupancy raiyat because he had obtained transfer from persons who had been in possession for over twelve years of the diara land. Reliance was, however, placed on a latter part of the judgment, where it was stated that there is no evidence one way or the other whether the provisions of Section 26B, Bihar Tenancy Act, were or were not complied with and therefore, as the landlord did not raise any objection before the rent reduction officer, the rent reduction cannot be held to be held to be ultra vires. It will be noticed that in that case the learned Judges came to a conclusion adverse to the landlord because he had not raised any objection on a question of fact, namely whether the landlord's fees had been deposited. It was, therefore, assumed that the landlord's fees had been deposited, otherwise he would have raised an objection. In the present case, even where an objection has not been raised, we cannot come to the conclusion that the appellants are raiyats. They remain under-raiyats all along. Therefore, this decision is of no help to the appellants. 6. The result is that the appeal fails, and is dismissed with costs.