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Kulsum-un-nissa Bibi Vs. Dauru Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Judge
Reported in30Ind.Cas.552
AppellantKulsum-un-nissa Bibi
RespondentDauru Nath and ors.
Excerpt:
landlord and tenant - muafi resumed--ex-muafidars recorded as tenants on payment of privileged rates of rent--dispossession of such tenants--suit to recover possession--jurisdiction of civil or revenue court--agra tenancy act (ii of 1901), section 79. - - the disssession clearly took place somewhere towards the close of the year 1909. the case as stated in the plaint may be summarised thus. in the plaint as drafted they clearly intended to claim that musammat sundar was not really in possession, except in so far as she enjoyed a hindu widow's right of maintenance out of the joint family property. in paragraph 5 of the plaint it is distinctly stated that musamrmt sundar had no right in the property in dispute. he found that they were something more than tenants,'and that their rights.....piggott, j.1. in this case the defendant appellant is the sole proprietor of mauza danpur in the bulandshahr district. the plaintiffs-respondents are residents of that village. their suit was for recovery of possession in respect of a particular plot of land, one bigha 15 biswas in area, situated in this village, from which they alleged themselves to have been wrongfully ejected by the defendant. the precise date of the alleged dispossession is not given in the plaint, but the plaintiffs dated their cause of action from an adverse decision of the revenue court on the question of mutation. the disssession clearly took place somewhere towards the close of the year 1909. the case as stated in the plaint may be summarised thus. the plot of land in question was originally owned by one param.....
Judgment:

Piggott, J.

1. In this case the defendant appellant is the sole proprietor of Mauza Danpur in the Bulandshahr District. The plaintiffs-respondents are residents of that village. Their suit was for recovery of possession in respect of a particular plot of land, one bigha 15 biswas in area, situated in this village, from which they alleged themselves to have been wrongfully ejected by the defendant. The precise date of the alleged dispossession is not given in the plaint, but the plaintiffs dated their cause of action from an adverse decision of the Revenue Court on the question of mutation. The disssession clearly took place somewhere towards the close of the year 1909. The case as stated in the plaint may be summarised thus. The plot of land in question was originally owned by one Param Sukh, from whom it descended to his grandsons, Baldeo Das and Tula Ram. Tula Ram predeceased Baldeo Das and the latter died somewhere about the year 1885. The plaintiffs are distant cousins of Baldeo Das and Tula Ram, claiming descent from Durga Das, own brother of the father of the said Baldeo Das and Tula Ram. The plaintiffs nevertheless asserted that they were members of a joint undivided Hindu family with Baldeo Das and Tula Ram, so that the plot of land in question passed to them by survivorship on the death of Baldeo Das. They admitted, however, that, in the village records, whatever rights had belonged to Baldeo Das were entered after his death as belonging to Musammat Sundar, the widow of his predeceased brother, Tula Ram. They said that this was done with their consent for the consolation' of this lady. In the plaint as drafted they clearly intended to claim that Musammat Sundar was not really in possession, except in so far as she enjoyed a Hindu widow's right of maintenance out of the joint family property. Musammat Sundar died in the year 1909 and the defendant, as proprietor of the mahal, took possession of the land in suit. The defendant's claim was that the land, in Musammat Sundar's possession at any rate, was a mere occupancy holding and that it escheated to the proprietor of the mahal because Musammat Sundar left behind her no heir entitled to succeed under Section 22 of the Tenancy Act (Local Act II of 1901). The plaintiffs said that they fought the matter in mutation before the Revenue Courts, but the decision there was against them. It is fair to note, however, that in the plaint itself the claim was put in an alternative form. In paragraph 5 of the plaint it is distinctly stated that Musamrmt Sundar had no right in the property in dispute. There is, however, an alternative plea, that if the lady was in fact in possession in her own right, then her rights were those of a Hindu widow and the property came to the plaintiffs on her death as the nearest surviving reversioners of her husband. The nature of the defence setup has already been sufficiently indicated. Before issues were fixed in the Court of first instance, the learned Munsif found it advisable to examine the plaintiff Chaube Dauru Nath, who made a statement on the 10th of February 1913 on behalf of himself and of the other plaintiffs. This statement was obviously interpreted by the learned Munsif as considerably modifying the pleas taken in the plaint. It has been read to us in detail, and I think the learned Munsif was substantially right in so regarding it. Undoubtedly the plaintiff Dauru Nath was anxious to hedge as far as possible and to evade the attempts made by the Court while he was under examination to tie him down to definite pleadings of fact on certain points. In substance, however, he did admit that Musammat Sundar obtained actual possession in 1885, on the death of Baldeo Das, and that she was in possession for 24 years until her death. He went on to explain that he himself and the other plaintiffs really managed Musammat Sundar's affairs for her and claimed to have been in joint cultivation with her of the land in suit. He said that the Court might regard his position with respect to this cultivation as that of a servant or as that of a partner; but I have no doubt he did intend to plead that he was sharing in the cultivation of the holding at the time of Musammat Sundar's death, within the meaning of Section 22 of the Agra Tenancy Act. The learned Munsif proceeded to fix a number of issues, of which he decided only two. The first of these was, 'whether Musammat Sundar held the disputed plot in village Danpur as an occupancy tenant or as an absolute owner.' The frame of the issue is, I think, justified by the fact that the plaintiff Dauru Nath in his statement before the Court had admitted Musammat Sundar's possession and had practically abandoned the plea put forward in the plaint that Musammat Sundar had never been in possession at all. On the issue thus framed the learned Munsif, after an elaborate discussion of the evidence and of the law which he considered applicable to the facts of the case, recorded a finding that the land held by Musammat Sundar was her occupancy holding and succession to the same was governed by the provisions of the Tenancy Act. This finding in itself was not conclusive against the plaintiffs unless and until the Court had gone on to determine the question of their alleged sharing in the cultivation of the holding at the time of Musammat Sundar's death. This the learned Munsif did not do, but he proceeded to take up another issue stated by him in the following terms: 'Whether the suit is cognizable in the Civil Court.' The issue is not very happily framed. The suit as brought was based upon a claim of proprietary right, and was undoubtedly cognizable in the Civil Court. Nevertheless it is sufficiently clear what the learned Munsif meant by this issue and what he has actually found in respect of it. If Musammat Sundar was an occupancy tenant of the land in suit the plaintiffs, supposing that they proved their case so as to give them a right to succession under Section 22 of the Tenancy Act, would have to prove that they were joint in cultivation with this lady at the time of her death. They were subsequently ejected by the defendant zemindar. They were, therefore, in the position of tenants ejected by the landholder otherwise than in accordance with the provisions of the Tenancy Act. That ejectment would give them a right of suit for recovery of possession and for compensation under Section 79 of the same Act, and inasmuch as they possessed that right of suit, the provisions of Section 167 of the Tenancy Act (read with reference to Section 79 aforesaid and serial number 30 in group (c) of the suits specified in the 4th Schedule to the same Act) would debar the plaintiffs from bringing a suit for recovery of possession in the Civil Court. This is what the learned Munsif obviously intended to find and has in substance found; and he dismissed the plaintiffs' suit accordingly. The latter appealed, and I shall have a few remarks to make presently regarding the position taken up by them in the memorandum of appeal. At present what I wish to notice is that in the interval between the filing of the appeal and its determination, there had been a decision by this Court in Second Appeal No. 1456 of 1918, decided on the 17th of July 1914. This decision was laid before the lower Appellate Court and obviously determined the result of the appeal in that Court. It was another suit from the same village and the present defendant-appellant as proprietor of the village was a party to it. The other parties were different, and it has never been suggested that the decision had in any way the effect of res judicata upon the present litigation. It was, however, a decision respecting a plot of land held on substantially the same tenure as the land in dispute in the present case. The point for determination, however, was not quite the same in the suit which resulted in Second Appeal No. 1456 of 1913. The holder of the land had mortgaged it. The mortgagee brought a suit upon his mortgage. obtained a decree, brought the mortgagors rights to sale and purchased them himself. While these proceedings were going on the mortgagor relinquished his rights, whatever they might be in favour of the proprietor of the village. On the strength of this relinquishment the proprietor succeeded in obtaining possession. The suit was by the mortgagee auction-purchaser for recovery of possession. The point which the Court had to determine was whether the rights of the mortgagor in the property in suit, whatever those rights might be, were or were not transferable. In that case the finding of the lower Appellate Court had been that the mortgagor's rights were those of an occupancy tenant and were not transferable. In appeal this finding was treated by this Court as a mixed question of law and of fact. The learned Judges who disposed of the appeal set forth in their judgment a statement of what were represented to them as being admitted facts with regard to the previous history of the land in suit. From those facts they drew an inference, as a point of law, that the rights of the mortgagor in the land then in question were proprietary rights, that the payments which the mortgagor had admittedly been making to the proprietor of the village could not properly be described as 'rent' within the meaning of the definition in Section 4, Clause (3), of the Tenancy Act, and that consequently there was no question of the existence, of tenancy, but the rights of the mortgagor being proprietary rights were transferable. On these findings the plaintiff's suit was decreed. In the present case the learned Subordinate Judge has accepted this decision as a ruling laying down principles on which he was bound to act. He does not seem to have considered whether the recital of admitted facts in the decision of this Court to which he was referred as a ruling did or did not agree with the facts alleged by the parties and proved by the evidence in the present case. He did, however, give a brief recital of certain facts regarding the previous history of the land in suit, which is correct enough as far as it goes. On these facts he recorded a finding in the following terms: That Param Sukh and Baldeo, &c;, were not occupancy or non-occupancy tenants of the disputed plot but that they were owners thereof. The so-called rent which they have been paying is in reality the Government revenue and cesses.' He went on to say that even if those persons be supposed not owners of this land, they could not be said to belong to any of the classes of tenants specified in Section 6 of the Tenancy-Act. He found that they were something more than tenants,' and that their rights were transferable as well as heritable. On these findings he held that the suit was not barred by Section 167 of the Tenancy Act but was maintainable in the Civil Court as brought. He was of opinion, however, that there remained other issues which ought to be tried out before the suit could either be decreed or dismissed. He accordingly treated it as having been dismissed by the Court of first instance upon a preliminary point and remanded it to that Court under Order XLI, Rule 23, of the Code of Civil Procedure, for decision on the merits. The defendant comes to this Court in appeal against this order of remand.

2. Two comments may be made at once on the finding of the learned Subordinate Judge. The first is that a finding to the effect that the rights of Param Sukh and Baldeo in the land in suit were proprietary rights was scarcely open to the learned Subordinate Judge in appeal. I have carefully considered the memorandum of appeal presented to that Court by the plaintiffs and it seems clear to me that the claim of proprietary rights was abandoned and was not intended to be pressed in the Court of first appeal. In the first paragraph the plaintiffs stated their case to be that Baldeo Das had held transferable rights of occupancy' in the land in dispute. In the second paragraph it is pleaded that Musammat Sundar was not a mere tenant under Act II of 1901, the aforesaid land has nothing to do with Act II of 1901.' There is nothing else in the memorandum of appeal to modify the position here taken up. The finding, therefore, which was really open to the lower Appellate Court was the alternative finding that the plaintiffs are something more than, tenants, and this finding is based upon a certain finding of fact and an inference drawn therefrom. The finding of fact is that the rights possessed by Param Sukh and Baldeo were transferable as well as heritable. The inference drawn therefrom is that persons possessing such rights cannot be tenants within the meaning of that word as used in what for the purposes of this case is the critical section, namely, Section 79 of the Agra Tenancy Act, It is clearly open to us, therefore, to re-consider this question of the existence or otherwise of a tenancy as a mixed question of law and of fact in the present appeal.

3. The other comment which may be made at once on the finding of the lower Appellate Court is that it does not warrant the further decision of the learned Subordinate' Judge to the effect that the suit is not barred by Section 167 of the Tenancy Act. The finding is limited to Param Sukh and Baldeo, &c.;' I do not quite understand what the learned Subordinate Judge meant by &c;,' but it is clear that he did not consider the question of the rights of Musammat Sundar. The defendant no doubt contended that Param Sukh and Baldeo and all other holders of similar tenures in this village were nothing more than occupancy tenants, but for the purposes of this suit she raised most distinctly a further plea as to the position of Musammat Sundar. She pointed out that under no apparent principle of law could Misammat Sundar have succeeded by inheritance to the rights of Baldeo Das, the brother of her deceased husband. From this the defendant desired to contend, that the possession of Musavin at Sundar at any rate was merely permissive on the partof the zemindar and that, although she was an occupancy tenant of this land at the time of her death, she had only become so under the ordinary law in virtue of her long possession. This point was not determined by the lower Appellate Court, although it required to be determined before there could be a definite finding on the question whether the suit was or was not barred by Section 167 of the Tenancy Act.

4. The question, therefore, to my mind is whether we ought to set aside the order of remand as passed and substitute for that order an order fixing necessary issues for preliminary determination under the provisions of Order XLI, Rule 25, of the Code of Civil Procedure, or whether, while setting aside the order of the lower Appellate Court, we are in a position to affirm, on the' record as it stands, the decision of the' first Court dismissing the suit. On the whole I incline to the latter alternative, and I do so because on the facts established by the evidence it seems to ma to follow as an inference of law that the rights, not only of Musammat Sundar, but of Baldeo Das before her, in the land in suit were at any rute no higher than the rights of tenants' within the meaning of that word as used in Section 79 of the Agra Tenancy Act. The land in suit formed part of some 300 bights of land in this village, the previous history of which has been laid before us at considerable length. In dealing with this history we have to remember that the Revenue Records of the Bulandshahr district perished during the Mutiny, and that the information available as to events prior to 1857 is scanty. It appears, however, that in the year 1838 these 300 bighas were in the possession, as separata plots of land, of a number of persons who claimed to hold the same as muafidars under a grant anterior to the establishment of British Rule in the district in question. There was an inquiry of some sort and a decision was come to adverse to the claims of these muafida Section The muafi was resumed and the land was ordered to be assessed to revenue. So much of it as was not covered by groves was to be assessed at once and the groves were liable to assessment by degrees as they lost their character as such. In the judgment of this Court in the connected suit to which reference has already been made, it is stated as one of the admitted facts that when the muafi was thus resumed it was settled with the muafidars. This is certainly not an admitted fact, in the present case: so far from its being an admitted fact, the evidence to the contrary seems to me perfectly clear. The plaintiffs-respondents rely upon an expression used in a petition presented to the Officer Settlement in 1861 which speaks of the muafi land as having been included in the khalsa and settled with the owner of the village in the course of the Settlement now current'. The inference sought to be drawn from this is that the land was so included and so settled for the first time in 1861. I am satisfied that the words will not bear that interpretation. They mean that the land had been so included and so settled during the currency of the Settlement which was being revised in the year 1861, and that the land was included in the khalm and settled with the proprietor of the village in consequence of the order of resumption passed in the year 1838. At two subsequent Settlements the question of the rights of these ex-muafidars came up for determination. In 1861, and again in 1883, the ex-muafidars claimed to be proprietors and to be settled with as such. In both years the decision was against them. They were excluded from the kliewat of the village and ordered to be recorded as maurusi tenants in 1861, and as kashtkaran dalchilkar in 1888. Another fact stated as one of the admitted facts of the case in the judgment of this Court in Second Appeal No. 1456 of 1913 is that, in the Settlement of 861, the transferable rights possessed by these ex-muafidars were expressly recognized by the Settlement Officer. This is not an admitted fact in the present case, and there is no evidence on this record to prove it. The proceedings of the year 1861 need to be carefully considered. There was first of all a proceeding with regard to the drawing up of the khewat, which resulted in a decision that the ex-muafidars were not entitled to be recorded in the khewat. After this decision had been arrived at, there was a question as to the preparation of the jamabandi. This involved a variety of questions, such as the nature of the tenancy to be recorded in respect of these former muafi lands and the rent to be assessed thereon. These questions were settled by agreement between the parties, and largely on the strength of a petition presented by the authorised agent of the proprietor of the village. Great stress was laid on the wording of that petition by the learned Judges who decided the connected case. It does not seem to me in any way inconsistent with the rest of the evidence in the case, or with the fact that the ex-muafidara were recorded as occupancy tenants of these lands at the Settlement of 1861. The petition of the proprietor of the malial, after reciting the facts regarding the resumption of the muafi grants and the settlement of these lands with the said proprietor, goes on to say that, out of consideration for the long possession of these foriaer muafidars, he has come to an agreement with them that they shall only be required to pay him the land revenue assessed' on these lands together with a percentage which he speaks of as a has malikana' If stress is to be laid on these words on behalf of the respondents, it is only fair to the other side to notice that the petition of the land-holder's agent expressly is that the money thus payable be recorded in the Rent Roll, that is to say, in the jamabandi. This is in fact what was done at that Settlement. The ex-muajidars were recorded as occupancy tenants holding at a rent representing the land revenue payable on these plots plus 10 per cent. The question was raised again at the Settlement of 1888, and it is to be noted that Mtisaminat Sundar herself appears as one of the persons who raised this question. In the Settlement of that year again, the petition of the ex-muafidars claiming proprietary rights and asking for a Settlement direct with them was disallowed. The Settlement Officer, however, seems to have felt some difficulty about these ex-muajidars and to have regarded them as occupying a status of a somewhat peculiar kind. He directed that they should be recorded as occupancy tenants; but he appended to that order a direction, which was in fact carried out, to the effect that in the village Record of Rights there should be a note made to the effect that these ex-muafidirs, of whom a detailed list was given, were occupancy tenants holding at privileged rates and that they had transferable rights in their holdings. It seems to me that this is practically all the evidence in the case with which we have to deal, and the real question to my mind is simply whether the payments which these ex-muajidars have during all these years been making to the proprietor of the mahal do or do not amount to rent within the meaning of the definition in Section 4, Clause (3), of the Tenancy Act. The money thus payable has been directed to be recorded as rent at two consecutive Settlements, in face of the refusal of the proper authorities at both those Settlements to recognize any sort of proprietary rights in these ex-muajidars it seems to me impossible to hold that the payments which they were to make to the proprietor of ilia mahal represented anything more than what the Settlement Officer in 1888 had held it to be, namely, a special or privileged rate of rent. 'The contention before us on behalf of the respondents was that the proceedings in 1861 and in 1838 should be treated as having been a sort of sub-settlement with the ex-muajidars, under the provisions of Section 53, 54, 55 and 56 of the Land Revenue Act then in force, Act XIX of 1873. Special reliance is placed upon the provisions of Section 56. If I thought it could reasonably be contended that the Settlement Officer in 1888 had recognized that these ex-muajidars possessed proprietary rights of some kind in the lands in their possession, I should have been prepared to hold that, as a matter of law, it is not impossible under these provisions of the Land Revenue Act for a Settlement Officer to recognize certain persons as holding a status substantially analogous to that of sub-proprietors in Oudh. It seems to me, however, that the Settlement Officer in 1888 followed, even though it may have been with reluctance, the precedent set by his predecessor in 1861 in refusing to recognize the existence of any kind of proprietary rights in these ex-muajidars.

5. The other principal point urged upon us on behalf of the respondents is that we ought not to have regard exclusively to the definitions of rent, landholder, and tenant in Section 4 of the Tenancy Act but we ought to consider further the classification of tenants given in Section 6 of the same Act. As I understand the position, the respondents wish us to record definitely, one way or the other, a finding whether the rights possessed by these ex-muajidars were or were not transferable, and if we find that the rights were transferable, then to hold that this fact alone makes it impossible for them to be tenants within the meaning of the Tenancy Act. When the Settlement Officer in the year 1888 was considering substantially this very question, it was urged upon him that he ought not to make any entry of a custom under which the ex-muafidars had transferable rights in their holdings, because such a custom would be in contravention of Statute Law. On this he remarked that it might be for the Courts hereafter to determine whether the Statute Law, beginning with the Rent Act of 1873, had or had not taken away from these particular tenants the rights of transfer which they previously enjoyed or whether it was not possible that, in spite of the Statute Law, there should be a body of occupancy tenants who, by reason of the manner in which their tenancy had come into existence and had been recognized by the proprietor of the mahal, had succeeded in acquiring and retaining transferable rights in spite of the statutory prohibition. In any case the Settlement Officer said, ''I shall record the existence of custom if I find it fully established' and he proceeded to do so. In the view which I take of this case it is not necessary for us here to determine this question of the transferability of thes holdings. It is possible that they are not transferable; but to my mind it is conceivable that they may be transferable and that their transferability may bs established hereafter by other decisione besides the one of this Court in the connected suit to which I have already referred. I am of opinion, however, that even though it were proved that, by reason of special local custom or of the previous history of these holdings and of the manner in which they came into existence, the tenants thereof have retained transferable rights, they would nevertheless continue to be tenants' within the meaning of that word as defined in Section 4, and as used in Section 79 of the Tenancy Act. For these reasons, in my opinion, the proper order for us to pass is one setting aside the order of remand passed by the lower Appellate Court and restoring the order of the first Court dismissing the suit with costs.

Chamier, J.

6. I, too, am of opinion that this appeal should be allowed and the suit dismissed. I desire to add only a few words with regard to what took place in 1838 and the contention that the holding is transferable and, therefore, the persons entitled to it are not tenants within the meaning of the Tenancy Act. The Gazetteer shows that the pargana in which the land now in question lies became part of British India in or about the year 1803. Between that year and 1838 there were several Settlements in the district. Regulation after Regulation had been passed for the purpose of ascertaining the nature and extent of muafi grants in the Province. Arrangements had been made to have all such grants entered in a register and every effort had been made to induce persons claiming to hold as muafidars to come forward with their claims. When the claim of the holders of the land now in question was put forward in 1838 it was summarily rejected, both because the claimants were unable to produce any documentary evidence, and also because the alleged muafi grant had not been entered in the prescribed register. Most of the old records have disappeared, but it is clear to me from the extracts from records of 1861 which have been put in evidence that the Court in 1838 not only decided that the claimants were not entitled to hold the land as muafidars but went on to settle the land with the zemindar of the village, and it appears that as long ago as 1842 or 1843 the holders of the land in question were recorded as tenants. It is important, I think, to remember that in 1838 a person holding under a muafi-grant which the Government declined to recognise was presumed to be the proprietor of the land until some one else was able to establish title against him. It is also important to notice that Regulation VII of 1822 contained provisions for the recognition and recording of persons found to be holding heritable and transferable proprietary rights in a mahal in subordination to the zemindar and those provisions were repeated and amplified in Section 53 to Section 56 of Act XIX of 1873 and again in Section 75 and the following sections of the present Land Revenue Act. Notwithstanding the presumption referred to above and the existence of these provisions from before 1838 up to the present time, no official has recorded the holders of these lands as being entitled to heritable and transferable proprietary rights in subordination to the zemindar of the village. The holders of these lands have all along been recorded as hereditary tenants holding on favourable terms. It seems to me that if we were to hold that they were proprietors of the land, we should be setting aside all that has been done regarding these lands since 1838. In my opinion it is quite clear that the holders of these lands, whatever they may have been prior to 1838, have not since that date been proprietors thereof.

7. I now turn to the question of the transferability of the rights of tenants. Prior to the Rent Act of 1859 there was no legislative enactment recognizing or conferring a right of occupancy upon cultivators. But the elaborate inquiries which preceded the passing of that Act showed that there was a consensus of opinion that 12 years, occupancy conferred at least a prima facie right of occupancy and a provision to that effect was inserted in the Act. But that Act left the question of the transferability of tenures unprovided for. There were numerous and conflicting decisions as to the transferability of the rights of occupancy tenants, and to judge from a very recent decision of a Full Bench of the Calcutta High Court in Dayamoyi v. Ananda Mohan Roy Chowdhuri 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 the conflict of opinion still continues in Bengal. The Full Bench concluded their judgment with the remark: We would only add that the uncertainty as to the transferability of holdings has been one of the most fruitful sources of litigation, and it is urgently necessary that it should be set at rest by the Legislature.' Many years ago it was held by a Full Bench in Calcutta that an occupancy right was prima facie not transferable but could be shown to be transferable by custom. That was understood to be the law in the North Western Provinces also previous to the Rent Act of 1873. In a Circular of the Board of Revenue of 1856, I find the following statement regarding the transfer of occupancy rights: It is to be understood that the Government is not opposed to the growth in the free course of private transactions of a transferable cultivating title, and no impediment should be thrown in the way of the admission by the zemindars of such title, or of its tacit creation, according to the wishes and interests of the parties concerned.' Between 1856 and 1873 it came to be recognized that the continual transfer of tenants' holdings was an unmixed evil, and in 1873 the Legislature by Section 9 of the Rent Act of that year declared that no right of occupancy should be transferable by grant, Will, or otherwise except in certain specified cases. This prohibition was repeated in Section 9 of the Rent Act of 1881 and is to be found in an amplified form in the present Tenancy Act. It seems to me quite clear that proof that the rights of the persons who held the lands now in question were transferable would by no means lead to the conclusion that they were other than tenants. It may be that it is not open to an occupancy tenant now to plead and prove that by custom his holding is transferable, but, even if he is entitled to do so, it is quite clear that proof that his holding is transferable will not convert him into a proprietor. I am satisfied that the holders of these lands have since 1838 been nothing more than tenants and that what they have paid to the zemindar has been rent, although the amount of that rent has all along depended upon the amount of revenue assessed on the land. The learned Vakil for the plaintiffs in the present case has relied strongly upon some proceedings of the Board of Revenue dated February and March 1892. Those proceedings were held upon an application for revision of an order passed by the Commissioner of Meerut on appeal against an order passed by the Settlement Officer. It appears that the Settlement Officer was asked to fix the rent payable in respect of these lands, and he did so. Mr. Kaye, Junior Member of the Board, gives a short sketch of the previous history of the case and says that the applicants were in 1861 found to be tenants with a right of occupancy liable to pay only a privileged rate of rent. He says as to the first contention advanced before them, namely, that the applicants were proprietors and not tenants however curious and unusual the applicants' status may be it is unquestionably a fact that they have been declared by judicial proceedings to be tenants and not proprietors and that question cannot now be re-opened.' He then goes on to consider the rate at which the jama assessable as rent should be fixed. In conclusion he says 'I would set aside the Commissioner's order and fix rent at 42 per cent, of the soil rents plus ten per cent.' Mr. Reid, Senior Member, agreed with him but in his opinion the holders of the land were liable to pay local rate also. Mr. Reid refers to the proceedings of the last Settlement and says from the proceedings of the last Settlement it would appear that the lands were resumed muafi upon which the landlord of the mahal admitted that the muafidars had acquired a full proprietary title with rights of inheritance and transfer. There was consequently assessed upon them the Government revenue of the land together with a ten per cent, vialihana allowance,' This is the passage upon which the learned Vakil for the plaintiffs has relied. We have been unable to find in the proceedings of the Settlement to which Mr. Reid refers any admission by the landlord of the mahal that the muafidars had acquired proprietary rights in the land. On the contrary, it seems to us that the landlord has all along maintained that the holders were tenants. Even if the reference to the Settlement proceedings by Mr. Reid is correct, and will bear the construction put upon it by the plaintiffs, his remark does not decide the question of title. He had no authority to decide that the holders of the land were proprietors, and it is quite certain that his colleague, Mr. Kaye, was satisfied that they were tenants. In my opinion there can be no doubt that the holders of these lands were tenants and paid rent as such. I, therefore, agree that the suit should have been dismissed.

8. The order of the Court is that this appeal is allowed, the order of the lower Appellate Court is set aside and that of the Court of first instance is restored with costs.


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