G.K. Misra, J.
1. The disputed lands appertain to plot Nos. 1993, 1994 and 1995 in Sikimi Khata No. 5 in village Mahespur in the district of Balasore. These plots respectively constitute Bari, Ghar and Puruna padia with an area of 0.26, 0.10 and 0.59 acres. Advocates for the parties do not dispute that the suit lands constitute homestead within the meaning of Section 236 (1) of the Orissa Tenancy Act (hereinafter to be referred to as the Act). One Ambika Prasad Das was the Sthitiban tenant of these lands. He had two sons, Biswanath and Kshetramohan. They transferred the disputed lands to one Radhakrishna by a registered sale deed (Ex. 2) on 24-4-45. Radhakrishna sold the same by another registered document (Ex. 3) to Bhagaban Behera and his brother on 17-3-47. Bhagaban and his brother sold the disputed lands to Hadi Behera by a registered sale deed (Ex. 6) on 29-10-49. Hadi Behera sold the disputed lands by a registered sale deed (Ex. 5) to the plaintiff on 10-1-51. Plaintiff's suit is for declaration of title and recovery of possession on the strength of this sale deed.
In respect of this land, admittedly one Sebak Das was the sikimi tenant (under-raiyal). Sebak Das had four sons, Parbati, Daina, Balaram and Durgi. Defendants Nos. 3 and 4 are the daughters of Parbati, who died in 1942. Defendant No. 7 is the son of Daina. Defendant No. 5 is the daughter of Balaram who died before 1942. Defendant No. 6 is the son of Durgi. In the current settlement khatian, Parbati, Daina, Balaram and Bichitra (D/6) were recorded as sikimi tenants. Plaintiff's case is that as Parbati and Balaram died son-less, while living in a state of jointness, Daina, Madhusudan and Bichitra became the owners of the property. In 1942, the house collapsed by a cyclone. The sikimi tenant abandoned the disputed lands and went over to another village Perili where they resided. As the disputed lands were abandoned, the recorded Sthitiban tenants Biswanath and Kshetramohan entered into khas possession whereafter they transferred the lands to Radhakrishna as already stated. On 28-11-57, defendants Nos. 3, 4 and 5 transferred by a registered sale deed (Ex. F) Rs. 0-10-8 pies interest in the disputed lands to defendants Nos. 1 and 2 who threatened to disturb plaintiff's peaceful and undisturbed possession. Plaintiff accordingly filed the suit for declaration of title, confirmation of possession and in the alternative for recovery of possession.
Defendants Nos. 1 and 2 contested the suit. Defendants No. 3, 4 and 6 supported defendants Nos. 1 and 2. Defendant No. 7 supported the plaintiff's case. The case of the defendants Nos. 1 and 2 is that there was severance of joint status amongst the sikimi tenants Parbati, Daina, Balaram and Durgi. Defendants Nos. 3 and 4 are entitled to Rs. 0-4-0 and defendant No. 5 is entitled to another Rs. 0-4-0. Defendants Nos. 1 and 2 are, therefore, entitled to Rs. 0-8-0 of the disputed property, though by mistake Rs. 0-10-8 pies were sold and they were prepared to surrender the excess of Rs. 0-2-8 pies.
2. The trial Court accepted the plaintiff's version that the sikimi tenants abandoned the disputed lands in 1942 and that Biswanath and Kshetramohan entered into possession of the disputed lands thereafter. He accordingly decreed the plaintiff's suit. In appeal, the learned Addl. Subordinate Judge held that the plaintiff failed to establish abandonment by the sikimi tenants. Though he held that Ex. 5 validly conveyed the occupancv right, he dismissed the plaintiff's suit on the finding that defendants Nos. 3 to 5 transferred the sikimi right to defendants Nos. 1 and 2 under a valid sale deed (Ex. F). Against the appellate decree the second appeal has been filed.
3. Mr. Sinha does not assail the findings of the lower appellate Court on the question of abandonment. It must, therefore, be held that the sikimi tenants did not abandon the disputed lands in 1942, as alleged by the plaintiff. Plaintiff's further case that Biswanath and Kshetramohan entered into khas possession of the lands in 1942 and thereafter the successive transferees under Exs. 2, 3, 6 and 5 came into possession was negatived by the learned Addl. Subordinate Judge. Mr. Sinha rightly did not assail this finding.
4. Mr. Sinha advanced two contentions which were not presented before the Courts below. Those are;
(a) Sikimi right is not heritable and transferable except by custom. The onus is on defendants Nos. 1 and 2 to establish that they acquired a valid title under Ex. F.
(b) There is no finding by any Courts below that the sikimi tenants ordinarily resided in the disputed homestead so as to acquire the heritable and transferable right of an occupancy tenant Under Section 236 (1) of the Act.
Both the contentions require careful examination.
5. Under-raiyats constitute a class of tenants Under Section 4 (3) of the Act. The under-raiyat is a tenant holding whether immediately or mediately under raiyat. The rights and liabilities of under-raiyats are enumerated in Sections 56 and 57 of the Act which constitute the entire Chap. VIII. Statutorily. under-raiyati rights are not heritable and transferable. The Act does not contain any specific provision conferring such rights as in the case of occupancy raiyats.
Law is well settled that under-raiyati right is not heritable or transferable, except by proof: of custom Such rights existing on the basis of custom have been saved Under Section 237 of the Act which says that 'nothing in this Act shall affect any custom, usage or customary right not inconsistent with, or not expressly or by necessary implication modified or abolished by, its provisions'. Thus, this section protects underrayati rights heritable or transferable by custom to continue as such. Illustration (2) appended to the section is as follows:
(2) The custom or usage, that an under-raiyat should, under certain circumstances, acquire a right of occupancy is not inconsistent with, and is not expressly or by necessary implication modified or abolished by. the provisions of this Act, That custom or usage, accordingly, wherever it exists, will not be affected by this Act.'
The section and illustration give legislative recognition to the well-established position of law that under-raiyati right is not heritable and transferable, except by proof of custom. The same view has been taken in (1961) 3 Ori JD 331. Bhikari Bhoi v Jagannath Mohapatra.
It can hardly be disputed that the onus is on the person who claims the under-raivati right to be heritable and transferable to prove it. Defendants Nos. 1 and 2 should have pleaded and proved that the under-raiyati right of defendants Nos. 3 to 5 was heritable and transferable by custom. Mr Dasgupta fairly conceded that there was no such pleading or proof.
On the aforesaid analysis, defendants Nos. 3 to 5 had no heritable or transferable right after the death of the recorded sikimi tenants. It has, however, been held by the learned Addl. Subordinate Judge that these defendants did not abandon the disputed land and continued in possession. A question therefore arises as to in what character they were in possession. In the written statement of defendants Nos. 1 and 2, there was a clear admission that defendants Nos. 3 to 5 were under-raiyats in respect of the disputed lands. That shows their animus. Thus, on the death of Parbati and Balaram defendants Nos. 3 to 5 remained in possession of the disputed lands as trespassers but they trespassed in respect of an under-raiyati right. It was open to them to have claimed adverse possession in a character different from that of an under-raiyat But that question is academic, in view of the admission in the written statement The further discustion will, therefore, proceed on the conclusion that until 28-11-57 when Ex. F was executed in favour of defendants Nos. 1 and 2, the transferors had prescribed an under-raiyati right by being in possession of the disputed lands for more than twelve vears from 1942 to 1957.
6. Defendants Nos. 3 to 5 thus being under-raiyats had no transferable right By virtue of the finding of the lower appellate Court, defendants Nos. 1 and 2 came into possession of the disputed lands in 1957 claiming occupancv right. The suit was filed on 12-1-59. The prescriptive period had not expired. If no further rights Under Section 236 (1) of the Act had been claimed, defendants Nos. 1 and 2 were liable to be evicted by the plaintiff despite both the vendors and the vendees under Ex. F being in possession of the disputed lands for more than twelve years.
7. To get over this difficulty, defendants Nos. 1 and 2 claimed that the transferors had acquired occupancy right in respect of the disputed homestead by virtue of Section 236 (1) of the Act. That section so far as relevant enacts that notwithstanding anything in this Act, the incidents of tenancy of any tenant, including the holder of a service tenure, in respect of the homestead in which such tenant ordinarily resides, shall be regulated by the provisions of this Act, applicable to land held by an occupancy raiyat'. Defendants Nos. 1 and 2 averred in their written statement that they had occupancy right in respect of this land. No specific issue was framed as to whether defendants Nos. 3 to 5 ordinarily resided in the disputed homestead. In the absence of such a finding, it is difficult to hold whether the transferors had acquired an occupancy right Under Section 236 (1).
As there was pleading on the point but there is no discussion by the Courts below on this question, the learned Advocates for both the parties prayed that the case should go back on remand for determination of this issue. Mr. Dasgupta contended that it should go back to the trial Court and parties should be given opportunity for adducing evidence as no specific issue was framed on the point. I am not inclined to accept this argument. The onus was on the defendants Nos. 1 and 2 to specifically plead and prove that their vendors had acquired occupancy rights Under Section 236 (1). They should have asked the Court to frame an issue on the point and it was their duty to adduce necessary evidence. The case should go back to the lower appellate Court to determine on the materials already on record whether the vendors of defendants Nos. 1 and 2 ordinarily resided iii the disputed homestead within the meaning of Section 236 (1) of the Act. If the learned lower appellate Court comes to the conclusion that defendants Nos. 3 to 5 ordinarily resided there, he must hold that they had acquired the transferable right of an occupancy raiyat, and as such, the transfer by Ex. F conveyed a valid title in favour of the defendants Nos, 1 and 2, In such a case, a decree for recovery of the excess of Rs. 0-2-8 pies only could be granted with joint possession. If on the other hand, it comes to the conclusion that defendants Nos. 3 to 5 did not ordinarily reside on the disputed homestead, then it must hold that Ex. F conveyed no valid title to defendants Nos. 1 and 2 and the suit for eviction must succeed.
8. It is to be noted that defendant No. 7 does not dispute plaintiffs title in respect of his Rs. 0-4-0 share. The plaintiff is, therefore, entitled to a decree in respect of one-fourth of the disputed property appertaining to the share of defendant No. 7. So far as defendant No. 6 is concerned the finding is that he resides on a portion of the disputed homestead corresponding to his share. He has acquired a non-evictable right by virtue of Section 236 (1) of the Act. The suit must be dismissed as against defendant No. 6.
9. In the result, the judgment of the learned Addl. Subordinate Judge is set aside and the appeal is allowed as indicated above. Afterremand, the learned lower appellate Court willdispose of the case in accordance with law andthe observations already made. Costs to abidethe result.