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Nagendra Chandra De and ors. Vs. Har Kumar De - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal514,137Ind.Cas.311
AppellantNagendra Chandra De and ors.
RespondentHar Kumar De
Cases ReferredLakhindra Barua v. Saroda Charan A.I.R.
Excerpt:
- .....are not permanently settled but are in reality temporarily settled estates. in other words, a noabad talukdar has got security of tenure for the period of a particular settlement; but at the expiration of the settlement,; the talukdar will be entitled to a fresh settlement, of the cultivated lands from government on terms to be arranged between the talukdar and the government. as regards uncultivated lands; such lands are ordinarily at the absolute disposal of government at the expiration of a settlement and a talukdar has no right to have a fresh settlement in respect of uncultivated lands.6. as regards the etmam or under-tenure under a talukdar, whenever it appears that the etmam or under-tenure is of long standing and that justice and equity demand that the etmam should be.....
Judgment:

C.C. Ghose, J.

1. The questions arising in this Letters Patent appeal were not considered necessary for determination by the learned Judge in this Court as he was of opinion, for the reasons stated by him in his judgment, that the appeal to this Court was incompetent in-asmuch as defendant 4 Debendra Chandra l)e who was a minor had not been properly represented in the appeal. The defect, such as it was, has now been removed and at the hearing before us steps were taken to have the said minor defendant properly represented by a guardian ad litem.

2. The appeal arises out of a suit for recovery of khas possession on declaration of plaintiff's title and for annulment of certain encumbrances in respect of two dags, namely, dags Nos. 39 and 34. The plaintiff alleged that he had purchased a Noabad taluk being taluk Jinnat Ali at a sale for arrears of revenue and that as such purchaser, ho was entitled to khas possession of the two dags in question by cancellation of encumbrances under the provision of Act 7 (B. C.) of 1868. The defendants who were the tenants eon-tended that in respect of the dags referred to above they were raiyats having occupancy rights and that as such, their interests in the said two dags were protected under the provisions of Section 14 of the said Act. These being the respective contentions of the parties, the lower appellate Court found that in respect of dag No. 39 the defendants had succeeded in establishing that they were raiyat's having occupancy rights and that therefore the plaintiff was not entitled to any relief whatsoever in respect of dag No. 39, the same being a protected interest within the meaning of Section 14 of the Act. The lower appellate Court; found however that as regards dag No. 34, it appeared from the settlement record which is Ex. 3 in this case, that the plaintiff was entitled to ask for cancellation of the encumbrances, because it had not been shown that the encumbrance such as it was either created or recognized during the settlement proceedings which took place. The Court of appeal below referred to Ex. 3 and found that the settlement officer had recorded an entry in respect of dag No. 34 which ran in those terms: 'The etmam is not binding as against the Government', and having regard to the said entry, the Court was of opinion that it was not a protected interest within the meaning of Sub-section (3), Section 12, of the Act. In other words, the result was that the defendants succeeded in respect of dag No. 39, but failed as regards dag No. 34.

3. The present appeal has been brought by the defendants and their contention is, that both in respect of dag No. 39 and dag No. 34 they are raiyats having occupancy rights and that therefore their interests therein are protested under Section 14 of the Act, and further there is nothing to show that the etmam or under-tenure in respect of dag No. 34 was not recognized during the settlement proceedings.

4. As regards the first point, the lower appellate Court has distinctly found that in respect of dag No. 34 the defendants are not raiyats having occupancy rights and that therefore Section 14 of the Act referred to above is not attracted to the case of this dag. That being so, the only contention which we have to deal with is whether or not during the settlement proceedings the dag in question, namely, dag No. 34, was 'recognized'.

5. I do not propose to go into the history of Noabad taluks. All the available information about the incidents of Noabad taluks will he found collected in the late Sir Charles Allen's Survey and Settlement Report of Chittagong and in Mr. O'Malley's Gazetteer of Chittagong. The word 'Noabad' by itself means newly cultivated and it is well known that Noabad taluks are not permanently settled but are in reality temporarily settled estates. In other words, a Noabad talukdar has got security of tenure for the period of a particular settlement; but at the expiration of the settlement,; the talukdar will be entitled to a fresh settlement, of the cultivated lands from Government on terms to be arranged between the talukdar and the Government. As regards uncultivated lands; such lands are ordinarily at the absolute disposal of Government at the expiration of a settlement and a talukdar has no right to have a fresh settlement in respect of uncultivated lands.

6. As regards the etmam or under-tenure under a talukdar, whenever it appears that the etmam or under-tenure is of long standing and that justice and equity demand that the etmam should be considered as an under-tenure binding on the Government, the settlement officer makes a note to that effect. When however it appears that the etmam is not considered binding on Government the settlement officer makes a note to the effect such as the note in the present case is, so far as between the Government and the etmamdar. But between the etmamdar and the talukdar, the etmamdar is entitled to the rights which exist between the parties and no interference is contemplated by the settlement authorities.

7. This being the position, I now turn to the provisions of 3. 12, Sub-section (3) for the purpose of finding out whether the etmam in this case is one which has been 'recognized' during the settlement proceedings. There is no question as to whether the etmam was 'created' during the settlement proceedings. That is not the case of either of the parties. The only matter for consideration is) whether or not the etmam was 'recognized' during the settlement proceedings. The learned advocate for the defendants contended that the question of 'recognition' was one between the Noabad talukdar and the etmamdar and had nothing whatever to do with the question of recognition by the settlement authorities so far as the Government was concerned. Regard being had to the fact that the Battlement was a temporary one, the question of the existence of rights as against the Government did clearly come up for consideration by the settlement authorities and the word 'recognition' in the context in which it appears namely, Section 12, Sub-section (3), clearly has reference to the question of recognition as against the Government. This is my reading of the settlement record (Ex. 3). In this view the etmam in question is not a protected interest and therefore the plaintiff as the purchaser of a noabad taluk at a revenue sale is entitled to call for the cancellation of such an encumbrance. The view I take is amply supported by authority, namely, the decision of this Court in the case of Lakhindra Barua v. Saroda Charan A.I.R. l914 Cal. 852. It follows therefore that this appeal hag no substance and must be dismissed with costs.

Rankin, C.J.

8. I agree.


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