Harihar Prasad Singh & ANR Vs.
Must. of Munshi Nath Prasad& Ors  INSC 1 (16 January 1956)
AIYYAR, T.L. VENKATARAMA BOSE, VIVIAN AIYAR,
CITATION: 1956 AIR 305 1956 SCR 1
Occupancy Bight-If can be acquired by lessce
from mortgagePresumption of record of rights-How rebut ted-Proprietor's private
land-Mode of proof-Bihar Tenancy Act (VIII of 1885), ss. 5(3) 21, 103-B,
120(2)-Transfer of Property Act (IV of 1882), s. 76(a) -Evidence Act (I of 1872),
The appellants were the purchasers of the
mortgagors' interests in the agricultural lands in suit and deposited the
amounts due on the mortgages in court under s. 83 of the Transfer of Property
Act, which were withdrawn by the representatives of the mortgagees and the
mortgages were redeemed. They were obstructed in taking khas possession of the
lands by tenants who were recorded as "settledraiyats" in the finally
published record of rights and brought the suit for recovery of possession from
the tenants and, alternatively, for damages against the representatives of the
mortgagees. The subordinate Judge found that the lands were the private lands
of the proprietors and the tenants were inducted not by them but by the
mortgagees in possession by a lease for a term which was neither bona fide nor
binding on the appellants and passed a decree in ejectment. On appeal, the High
Court held that the lands were not the private lands of the mortgagors, the
lease was bona fide and the recognition of the lessees as tenants by the
mortgagees conferred on them rights of occupancy in the suit lands and
dismissed the suit. The respondents relied on the presumptions under ss. 103-B
and 120(2) of the Bihar Tenancy Act and contended that the recognition by the
mortgagees of their tenancy right had the effect of conferring on them the
rights of occupancy under the Act.
Held, that an entry in the record of rights
published under s. 103-A of the Bihar Tenancy Act does not create rights but
merely raises a presumption under s. -103-B of the Act that such Tights exist,
which can be rebutted if it can be shown that the materials on which it was
based do not justify it.
Bogha Mower v. Ram Lakhan, ( 27 Cal.
L.J. 107) and Bakub Ali v. Muhammad Ali ( 49 Cal. L.J. 352), referred to.
That where, as in the present case, no
evidence was produced before the authority who made the record, one has only to
produce 2 such evidence as satisfies the court in order to rebut the
presumption. This is equally true with regard to the presumption enacted by s.
120(2) of the Act with regard to the proprietor's private land.
That s. 120 of the Bihar Tenancy Act merely
enacts certain rules of evidence for determining whether a disputed land is the
proprietor's "private" land. It does not preclude the proprietor,
even if he cannot prove that he cultivated the land as such for 12 years prior
to the date of the Act, from adducing other evidence to show that the land is
his private land.
Kisho Prashad Singh v. Parmeshri Prasad
Singh, ( I.L.R. 2 Pat. 414) and Bindeshwari Prasad Singh v. Kisho Prasad
Singh ( L.R. 53 I.A. 164), relied on.
That as the mortgagees were neither
proprietors nor tenureholders as defined by the Bihar Tenancy Act, persons
inducted by them could not be raiyats within the meaning of s. 5(3) of the Act
so as to acquire any rights of occupancy under s. 21 of the Act.
Mahabir Gope v. Harbans Narain Singh (
S.C.R. 775), applied.
Nor could the provisions of s. 76 (a) of the
Transfer of Property Act be of any avail. Assuming that the lease granted by
the mortgagees continued even after termination of the period fixed therein,
that could confer on the lessees no more than the status of tenants from year
to year, in which case, their possession would cease with the termination of
the agricultural year during which the mortgages were redeemed.
Rajendra Nath v. Dinu Prodhan (A.I.R. 1930
Cal. 738), disapproved.
Binod Lal Pakrashi v. Kalu Pramanik (
I.L.R. 20 Cal.
708), doubted and held inapplicable.
Pramatha Noth v. Sashi Bhusan (A.I.R. 1937
Cal. 763), distinguished.
Held further, that there is no presumption of
genuineness in favour of certified copies of documents under s. 90 of the
Evidence Act, nor does that section authorise the raising of a presumption as
to the existence of authority of an agent to act for another.
Basant v. Brijraj ( L.R. 62 I.A. 180),
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 107 of 1953.
Appeal by special leave from the judgment and
decree dated the 7th February 1949 of the Patna High Court in appeal from
original decrees No. 230 and 268 of 1945 arising out of the decree dated the
9th 3 day of August 1945 of the Second Court of Subordinate Judge at Monghyr in
Title Suit No. 40 of 1943.
P. K. Chatterjee, for the appellants.
Tarachand Brijmohanlal, B. C. Misra and S.
Barneshwar Prasad, for respondents Nos. 3 to 6, 20 to 25 and 27 to 39.
1956. January 16. The Judgment of the Court
was delivered by VENKATARAMA AYYAR J.-The properties which are the subjectmatter
of this litigation are agricultural lands of the extent of 18 acres 23 cents
situate in Mauza Chowki. They originally belonged to Khiran Rai, Firangi Rai
and others, and were usufructuarily mortgaged by them on 10-8-1900 to Babunath
Prasad and Babu Misri Lal under two sudbharna deeds, Exhibits 2 and 3, for a
sum of Rs. 1,600. The defendants of the first party are the representatives of
these mortgagees. In execution of a money decree passed against the mortgagors,
9 acres 6 cents out of the above lands were brought to sale on 11-6-1907 and
purchased by Rameshwar Prasad Singh, the undivided uncle of the first
plaintiff. On 23-12-1913 the remaining extent of 9 acres 17 cents was purchased
by the. first plaintiff from the mortgagors, and thus, the plaintiffs who were
members of a joint Hindu family became entitled to all the interests of the
mortgagors in the suit lands. In 1943 they deposited under section 83 of the
Transfer of Property Act the amounts due on the mortgage deeds, Exhibits 2 and
3, in the court of the District Munsif, Monghyr. The defendants of the first
party withdrew the amount, and the mortgages thus became redeemed. When the
plaintiffs attempted to take khas or actual possession of the lands, they were
obstructed by the defendants of the second party who claimed occupancy rights
therein. The plaintiffs then instituted the suit out of which the present
appeal arises, in the court of the Subordinate Judge, Monghyr, for recovery of
possession of the lands from the second party defendants.
4 The plaintiffs alleged that the lands were
'kamat khudkast' which had been in the personal enjoyment of Khiran Rai and
Firangi Rai and thereafter of the mortgagees and the defendants of the first
party by virtue of the sudbharna deeds, Exhibits 2 and 3, that the second party
defendants claimed rights as occupancy raiyats under a settlement by the
mortgagees, that the settlement was not real or bona fide, and was not binding
on the mortgagors. In the alternative, the plaintiffs claimed damages against
the defendants of the first party, if it was found that the second party bad
acquired occupancy rights under a settlement from them. Both sets of defendants
denied that the lands were kamat lands, or that the defendants of the first
party settled the defendants of the second party as raiyats on the land. They
pleaded that the latter had been in possession even prior to the mortgages,
Exhibits 2 and 3, under a settlement with the mortgagors, and that accordingly the
plaintiffs were entitled neither to possession from the second party nor
damages from the first party.
The Subordinate Judge of Mongbyr who tried
the suit, held that the lands were private lands of the proprietors, that the
defendants of the second party or their predecessors-intitle bad not been
inducted on the lands by the mortgagors, that they were put into possession by
the mortgagees only under the lease deed, Exhibit 2(a) dated 27th May 1905,
that they were mere creatures of the first party, and that the settlement was
not bona fide and not binding on the plaintiffs. He accordingly granted a
decree in favour of the plaintiffs in ejectment. Against this judgment, there
was an appeal by the defendants to the High Court of Patna, which agreed with the
Subordinate Judge that the defendants of the second party were inducted into
possession only in 1905 under the lease deed, Exhibit 2(a), and that they were
not raiyats settled by the mortgagors prior to 1900. But the learned Judges
held that the suit lands were not proved to be 'sir' or private lands, that the
second party defendants were not the creatures of the first party, that the
lease deed, Exhibit 2(a) was a 5 bona fide transaction, and that the
recognition of the defendants of the second party by the mortgagees as tenants
would confer occupancy rights on them. In the result, the suit was dismissed.
The plaintiffs appeal. It may be stated that the alternative claim for damages
against the first party was abandoned by the plaintiffs, and the only relief
now claimed is possession of lands as against the second party. Mr. Misra,
counsel for the first party, had accordingly nothing to say about the merits of
the controversy between the appellants and the second party defendants, and
merely pressed for his costs being awarded.
It was the second party appearing by counsel
Mr. Tarachand Brijmohan Lal, that vigorously contested the appeal.
The substantial question that arises for our
decision is whether the lands in dispute are private lands of the proprietor.
Section 120(2) of the Bihar Tenancy Act VIII of 1885, hereinafter referred to
as the Act, enacts a presumption that "land is not a proprietor's private
land, until the contrary is shown". And further, there was a cadastral
survey in 1908, and in the final notification published under section 103-A of
the Act, the lands were recorded as in the possession of the second party
defendants, whose status was described as 'kaimi' or settled raiyats. Under
section 103-B(3), "every entry in a record of rights so published shall be
evidence of the matter referred to in such entry, and shall be presumed to be
correct until it is proved by evidence to be incorrect".
The result of both these provisions is that
the burden is on the proprietor clearly to establish that the lands are his
private lands. Some oral evidence has been adduced by both sides as to the
character of the lands, but it is too vague, recent and interested to be of
much value, and the question therefore falls primarily to be decided on the
'documentary evidence in the case.
The earliest document bearing on the question
is Exhibit 1, which is a mortgage deed executed by the previous owners, Firangi
Rai and others, to Harbans Narain Singh on the 10th April, 1893 over a portion
6 of the suit lands. Therein, it is recited that the mortgagors "mortgage,
hypothecate and render liable the properties constituting the proprietory
mukarri interest, with all the zamindari rights and claims including the
khudkasht kamat lands". The word 'khudkasht' means personal cultivation,
and that is a neutral expression, which might include both private lands and
bakasht lands, that is to say, raiyati lands, which had come into the
possession of the proprietor by surrender, abandonment or otherwise. But the
word 'kamat' has a definite connotation, and means private lands. Vide section
116 of the Bihar Tenancy Act.
If the recital in Exhibit I is to be accepted
as correct, the lands were on that date in the personal cultivation of the
proprietor as private lands. Exhibits 2 and 3 are the sudbharna deeds dated
10-8-1900 under which the first party defendants got into possession of the
suit lands. They are in the same terms, and recite the at the mortgagees are to
enter into possession and occupation of lands, " cultivate or cause to be
cultivated the same for their selfsatisfaction", and that after the expiry
of the period fixed for redemption, the mortgagors are to pay the mortgage
amounts in one lump and take back the properties "in our sir and khas
possession". The word 'sir' is synonymous with 'kamat' and 'ziraat', and
means private lands of the proprietor. (Vide section 116). These recitals are
of considerable importance, as they occur in deeds interparties. The
respondents are right in contending that they cannot be regarded as admissions
by the mortgagees as the deeds were executed by the mortgagors; but they are
certainly admissible under section 13 of the Evidence Act as assertions of
title, and as it is under these documents that the first party defendants
claim, their probative value as against them and as against the second party
defendants who claim under them is high. Exhibit I (b) is a simple mortgage
executed by Firangi Rai and others on 21-12-1901 in favour of one Chhotu Singh
over some properties forming part of the suit lands. It also contains the
recital that these properties are kamat khudkasht lands. There 7 is finally the
lease deed executed in favour of the first party by the defendants of the
second party, Exhibit 2(a) under which the latter came into possession of the
It recites that the lands had been in the
exclusive cultivation of Babu Nath Prasad and Babu Misri Lal, that the lessees
will give up possession of the lands at the end of the term which was a period
of 2 years,, and that the lessors will be "competent to bring the lands
mentioned in this kabuliat under their exclusive cultivation". As these
documents are ante litem motam, and as some of them, are inter-parties and
extend over a considerable period of time, they form cogent and strong evidence
that the lands are private lands.
Now, what is the evidence adduced by the
defendants to rebut the inference to be drawn from them? None. They simply
trust to the presumptions in their favour enacted in sections 120(2) and 103-B
of the Act to non-suit the plaintiffs. But these are rebuttable presumptions,
and they have, in our opinion, been rebutted by the evidence in the suit, which
is all one way.
It was argued for the respondents that even
if the evidence referred to above was accepted, that would be insufficient
under section 120 of the Act to support a finding that the lands were private
lands. Section 120 runs as follows:
"(1) The Revenue Officer shall record as
a proprietor's private land(a) land, which is proved to have been cultivated as
khamar, ziraat , sir, nij, nijjot or kamat by the propriet or, himself with his
own stock or by his own servants or by hired labour for twelve continuous years
immediately before the passing of this Act, and (b) cultivated land which is
recognised by village usage as proprietor's khamar, ziraat, sir, nij, nijjot or
(2) In determining whether any other land
ought to be recorded as a proprietor's private land, the officer shall have
regard to local custom, and to the question whether the land was, before the
second day 8 of March, 1883, specifically let as proprietor's private land, and
to any other evidence that may be produced; but shall presume that land is not
a proprietor's private land until the contrary is shown.
(3)If any question arises in a Civil Court as
to whether land is or is not a proprietor's private land, the Court shall have
regard to the rules laid down in this section for the guidance of Revenue
The contention of the respondents is that
under this section before lands could be held to be private, it must be shown
that they had been cultivated as private lands for 12 years prior to the date
of the Act, and that as the evidence in the case went back only to 1893, the
requirements of the section were not satisfied. This argument proceeds on a
misconception about the true scope of section 120. That section does not enact
that no land shall be recorded as private, unless it is proved to have been
cultivated as private land for 12 years prior to the date of the Act. It only provides
that when that is proved, it shall be recorded as private land. But when no
such evidence is forthcoming, it does not preclude that fact from being
established by "any other evidence that may be produced", if that is
relevant and admissible under the provisions of the Evidence Act. That was the
view taken in Maharaja Kesho Prasad Singh v. Parmeshri Prasad Singh(1), and on
appeal, the Privy Council agreed with it in Bindeshwari Prasad Singh v. Maharaja
Kesho Prasad Singh(2). The position, therefore, is that section 120 merely
enacts certain rules of evidence to be followed in an enquiry as to whether a
disputed land is 'ziraat'. When in such enquiry the facts mentioned in section
120(1) are established, the law raises a presumptio juriset de jure that the
lands are private. But where such evidence is not available, that fact can
still be established by other and satisfactory evidence. What has to be decided
therefore is whether the evidence actually adduced by the plaintiffs in the
present case is (1)  I.L.R. 2 Patna 414.
(2)  53 I.A. 164, 9 sufficient to
discharge the burden which the law casts on them and to prove that the lands
are 'kamat' or 'sir' lands.
For the reasons already given, we are of
opinion that it is sufficient to justify a finding in the affirmative.
Strong reliance was placed by the respondents
on Exhibits F1 and F-1(1) which are khatians relating to the suit lands
published on 7-12-1909 recording them as in the possession of the defendants of
the second party as 'kaimi' and on the presumption under section 103-B that
that entry is correct.
This presumption, it is contended, is
particularly strong in the present case, because the predecessors-in-title of
the plaintiffs were parties to the proceedings and contested the same, and that
the record of rights was made after considering their objections. The
plaintiffs, however, denied that they were parties to the proceedings, and
contended that they were taken behind their back by the mortgagees and the
second party defendants acting in collusion with a view to defeat their rights.
Exhibits A-1 and A-1(1) are certified copies of the objection petitions stated
to have been filed by the mortgagors under section 103-A of the Act, and they
purport to have been signed by one Chulai Mahto as karpardaz of some of the
The plaintiffs deny the genuineness of the
signatures in Exhibits A-1 and A-1(1) and also the authority of Chulai Mahto to
represent the mortgagors. There is no evidence that the signatures on Exhibits
A-1 and A-1 (1) are true, but the defendants rely on the presumption enacted in
section 90 of the Evidence Act in favour of their genuineness. But Exhibits A-1
and A-1 (I) are merely certified copies of the objection petitions filed before
the Survey Officer and not the originals, and it was held in Basant v.
Brijraj(1) that the presumption enacted in the section can be raised only with
reference to original documents and not to copies thereof. There is the further
difficulty in the way of the respondents that the documents are signed by
Chulai Mahto as agent, and there is no proof that he was an agent, (1) 
62 I.A. 180.
10 and section 90 does not authorise the
raising of a presumption as to the existence of authority on the part of Chulai
Mahto to represent the mortgagors. It is again to be noted that the objection
on the merits raised in Exhibits A1 and A-1(1) that the lands are bakasht lands
in the possession of mortgagees is not one which it was to the interests of the
mortgagors to put forward, as, if accepted, it would preclude them from
admitting tenants in respect of them, without conferring on them the status of
settled raiyats and occupancy rights under section 21 of the Act.
It was only if the lands were private lands
that the proprietor would be entitled to cultivate them personally, and that
was the claim which they had been making consistently from 1893 onwards. The
claim put forward in Exhibits A-1 and A-1(1) is destructive of the rights
claimed all along by the mortgagors, and amounts to an admission that the lands
are not private and raises the doubt that the petitions were not really
inspired by them.
It should also be mentioned that at the
hearing of the petition, no evidence was adduced by the mortgagors, and the
decision of the Survey Officer was given practically ex parte. The mortgagees
were parties to the proceedings, and they did not appear and produce the
mortgage deeds, Exhibits 2 and 3, under which they got into possession, and
which described the lands as 'sir'. It was to the interests of the mortgagees
that the' lands should be held to be 'sir', and it was further their duty to
defend the title of the mortgagors as against the claim made by the tenants
that they were raiyati lands. Why then did they not produce Exhibits 2 and 3 at
the hearing? The recitals in the lease deed, Exhibit 2(a) which was executed by
the defendants of the second party, were inconsistent with their claim that the
lands were raiyati. Why did they not produce it at the hearing ? There is
therefore much to be said for the contention of the appellants that the
proceedings evidenced by Exhibits A-1 and A-1(1) were collusive in character.
But even assuming that they were real, that
11 would not materially affect the result, as the true effect of a record of
rights under section 103-A is not to create rights where none existed but
simply to raise a presumption under section 103-B that such' rights exist, and
that presumption is one liable to be rebutted. There is a long line of
authorities that a person who attacks a record made under section 103-A as
incorrect discharges the burden which the law casts on him under section 103-B
by showing that it was not justified on the materials on which it is based.
Vide Bogha Mower v. Ram Lakhan(1) and Eakub
Ali v. Muhammad Ali(2). And where., as here, no evidence was placed before the
authorities who made the record, he has only to produce evidence which
satisfies the court that the entry is erroneous. Whether the question is
considered with reference to the presumption under section 120(2) or section
103-B, the position is the same. The plaintiffs who claim that the lands are
kamat have to establish it by clear and satisfactory evidence. If the evidence
adduced by them is sufficient, as we have held it is, to establish it, the
presumption under section 103-B equally with that under section 120(2 becomes
displaced. In the result, we are of opinion that the suit lands are the private
lands of the proprietor.
It was next contended that even if the lands
were private lands, that would not prevent the acquis tion of occupancy rights
by the tenants under Chapter V, as the restriction provided in section 116 in
that behalf did not apply on the facts of the present case, and that in
consequence no relief in ejectment could be granted. Section 116 enacts,
omitting what is not material, that "nothing in Chapter V shall confer a
right of occupancy in a proprietor's private land where any such land is held
under a lease for a term of years or under a lease from year to year". ,
In the present case,, the tenants got into possession under Exhibit 2(a), which
was a lease for two years, and they would therefore be precluded from acquiring
occupancy rights by virtue of that demise. But it is argued that the tenants
continued in possession of (1)  27 Cal. L.J. 107. (2)  49 Cal. L.J.
12 the holdings even after the expiry of the
term under Exhibit 2(a), paid the rent to the mortgagees who recognised them as
tenants, and that their status therefore was not that of tenants holding under
a lease for a term or from year to year, and that accordingly there was no
impediment to their acquiring occupancy rights under Chapter V. The point has
not been argued whether, as Exhibit 2(a) is an agricultural lease, the tenants
who held over after the expiry of the period fixed therein, should not be considered
to hold as tenants from year to year, on the principle enacted in sections 106
and 116 of the Transfer of Property Act.
We shall proceed on the footing that on the
findings of the High Court that the tenants were riot the creatures or servants
of the mortgagees, and that they had been in continuous possession paying rent
to them, section 116 did not debar them from acquiring rights under Chapter V.
But the question is whether they acquired such rights under that Chapter.
Section 21 provides that every person who is a settled raiyat in a village
shall have a right of occupancy in all land for the time being held by him as a
raiyat in that village. Section 20 defines a settled raiyat as a person who
holds continuously land for a period of 12 years in any village. Section 5(2)
defines 'raiyat' as a person who has acquired a right to bold land for the
purpose of cultivating it by himself or members of his family or servants or
partners, and section 5 (3) provides that "a person shall not be deemed to
be a raiyat unless he holds land either immediately under a proprietor or
immediately under a tenure-bolder". The position therefore is that before
a person can claim occupancy rights under section 21, he must establish that he
is a raiyat as defined in sections 5(2) and 5(3), and as the defendants of the
second party acquired the right to hold the lands for the purpose of
cultivation from the first party mortgagees and not under the mortgagors, they
are not raiyats as defided in section 5(3), and can claim no rights under
section 21. On behalf of the tenants, it was contended that as under section 58
of the Transfer of Property Act a 13 mortgage is a transfer of interest in
land, the mortgagee is the owner of that interest and therefore a proprietor
for the purpose of section 5(3). Section 3(2) defines a proprietor as meaning a
person owning whether in trust or for his own benefit an estate or part of an
estate. A mortgagee is no doubt the transferee of an interest in immovable
property, and may in a loose sense be said to be the owner of that interest.
But the definition of a proprietor requires that he should own the estate or
part thereof and not merely an interest therein. It would be a contradiction in
terms to say of a mortgagee that he owns the estate over which he owns an
interest. As observed in Ghose on the Law of Mortgage in India, Volume I, page
77, "Interest which passes to the mortgagee is not the ownership or
dominion which, notwithstanding the mortgage, resides in the mortgagor".
The question whether for purposes of section
21 of the Act a tenant from a mortgagee can be held to be a raiyat as defined
in section 5(3) was considered by this Court in Mahabir Gope and others v.
Harban8 Narain Singh and others(1), and it was held that a mortgagee is neither
a proprietor nor a tenure-holder, and a tenant inducted by him on the lands is
not a raiyat within the definition of those terms under the Act. That decision
governs this case.
The contention of the respondents that the
mortgagees could be considered as tenure-holders within section 5(3) is equally
untenable. Section 5(1) defines a tenure-holder as meaning a person who has
acquired a right to hold lands for collecting rents or for bringing them into
cultivation by establishing tenants thereon. In the present case, the lands
were under the personal cultivation of the mortgagors at the time when they
were mortgaged under Exhibits 2 and 3.
There were then no raiyats on the land and no
'question of transferring the right to collect rent from them. The respondents
relied on the terms in Exhibits 2 and 3 that the mortgagees might cultivate the
lands or cause them to be cultivated at their pleasure, as authorising the
establishment of tenants. But that (1)  S.C.R. 775, 781.
14 clause would apply only if the lands had
to be brought afresh under cultivation, and that was not the position here. As
the mortgagees are neither proprietors nor tenureholders as defined in the Act,
the tenants holding under them could not claim to be raiyats as defined in
sections.5(2) and 5(3), and no occupancy rights could therefore be acquired by
them under section 21 of the Act.
It was next contended that the mortgagees had
the power under section 76 of the Transfer of Property Act to induct tenants on
the land for purposes of cultivation, that such a transaction. would be binding
on the mortgagors, and that its effect would be to confer on the tenants the
status of raiyats and that they would get occupancy rights under section 21 of
the Act. The decisions in Manjhil Lal Biswa Nath Sah Deo v. Mahiuddin(1),
Rajendra Nath v. Dinu Prodhan(2) and Pramatha Nath v. Sashi Bhu8an(3) were
relied on in support of this contention. This argument proceeds on a confusion
of two wholly independent concepts distinct in their origin and different in
their legal incidents. The law is that a person cannot confer on another any
right higher than what he himself possesses, and therefore, a lease created by
a usufructuary mortgagee would normally terminate on the redemption of the
mortgage. Section 76(a) enacts an exception to this rule. If the lease is one
which could have been made by the owner in the course of prudent management, it
would be binding on the mortgagors, notwithstanding that the mortgage has been
redeemed. Even in such a case, the operation of the lease cannot extend beyond
the period for which it was granted. In the present case, assuming that the
mortgagees bad the power under section 76(a) of the Transfer of Property Act to
continue the lessees under Exhibit 2(a) as tenants on the lands after the
termination of the period fixed therein that would confer on them at best the
status of tenants from year to year and not give them the right to continue in
possession after the termination of the agricultural year during which the
redemption (1)  97 I.C. 852. (2) A.I.R. 1930 Cal. 738.
(3)A.I.R. 1987 Cal. 763.
15 takes place. In this view, the power of
the mortgagee under section 76(a) of the Transfer of Property Act to induct
tenants in the usual course of management would not avail the respondents to
claim occupancy rights over the lands.
Turning next to the provisions of the Bihar
Tenancy Act, section 21 confers on settled raiyats a permanent right of
occupancy, provided the conditions mentioned in that section are satisfied. But
this right is a creature of the statute, and cannot be claimed apart from its
provisions. A mortgagee is, as already stated, neither a proprietor nor a
tenure-holder, and a person settled by him on the land does not enjoy the
status of a raiyat under sections 5(2) and 5(3). He is therefore not a person
entitled under the terms of the statute to any occupancy rights. Thus, if the
respondents cannot resist the suit for ejectment either by reason of section
76(a) of the Transfer of Property Act or section 21 of the Bihar Tenancy Act,
it is difficult to see how they could get such a right as the result of the
interaction of both those sections.
In Manjhil Lal Biswa Nath Sah Deo v.
Mahiuddin(1), the suit was by a mortgagor after redemption to recover
possession of lands, which had been leased by the mortgagee. The proprietor
claimed that the lands were zirait; but the finding, however, was that they
were raiyat lands, and that the mortgagee had inducted tenants into possession
in the usual course of management. It was held that the tenants could not be
ejected. The decision was expressly based on the fact that the lands were
raiyati lands, and the learned Judges distinguished the cases in Mahadeo Prasad
Sahu v. Gajadhar Prasad Sahu(2 ) and Jogeshwar Mazumdar v. Abed Mahomed Sirkar
(3) on the ground that the lands which were the subject of mortgage therein
were zerait lands. This decision does not support the broad proposition for
which the respondents contend, and is really against them, as the mortgage in
the present case is of 'kamat' lands.
In Rajendra Nath v. Dinu Prodhan(4), the
facts were (1)  97 I.C. 852. (2)  73 I.C. 359 (3)  3 C.W.N.
13. (4) A.I.R. 1930 Cal.
16 similar to those in Manjhil Lal Biswa Nath
Sah Deo v. Mahiuddin(1), except that the lands do not appear to have been
raiyati lands. In holding that the mortgagor was not entitled to possession,
Guha, J. observed that the mortgage deed did not stand in the way of the
tenants being settled by the mortgagee, and that when they were so settled,
they had well defined rights under the Act, and could not be ejected. If
section 5(3) of the Act did not apply-and it would not, unless the letting was
by the proprietor or tenureholder it is not stated what other provision of law
operated to confer occupancy rights on the tenant. The learned Judge then
referred to Binad Lal Pakrashi v. Kalu Pramanik(2 ) as furnishing the principle
on which the decision should rest. There, a tenant was put into possession by a
person who claimed to be the proprietor, and though it subsequently turned out
that he was not, it was held that the letting by him conferred on the tenant
the status of a raiyat. As pointed out in Peary Mohun Mondal v. Radhika Mohun
Hazra(3) and Krishna Nath Chakrabarty v. Mahomed Wafiz(4) the basis of the
decision in Binad Lal Pakrashi v. Kalu Pramanik(2) was that the word
"proprietor" in section 5(3) would include a defacto as well as a de
jure proprietor, and a tenant who is bona fide inducted into possession by him
would have the status of a raiyat. This decision makes an inroad on the general
principle that no one can confer a better right than what he has got, and later
decisions have generally shown a disposition to confine its application within
narrow limits. But even on its own ground, it can have no application when the
person who admits a tenant is not, as required by section 5 (3), a proprietor
de facto or de jure, but a mortgagee. The principle of the decision in Binad
Lal Pakraski v. Kalu Pramanik(2) does not therefore support the conclusion in
Rajendra Nath v. Dinu Prodhan(5) that a tenant admitted by a mortgagee into
possession acquires the status of a raiyat.
(1)  97 I.C. 852, (2)  I.L.R. 20
(3)  8 C.W.N. 315. (4)  21 C.W.N.
(5)A.I.R. 1930 Cal. 738.
17 In Pramtha Nath v. Sashi Bhusan(1), a
permanent lease was granted by a mortgagee after he had obtained a decree for
foreclosure. Subsequently, that decree was recalled in a suit by the Official
Receiver' representing one of the mortgagors and a fresh decree for redemption
After redemption, the Official Receiver
received rent from the lessee treating him as a tenant on the land. A
transferee from the Official Receiver having subsequently instituted a suit in
ejectment against the tenant, it was held that the latter bad acquired a right
of occupancy under section 21 of the Act, and that the relief for khas
possession could not be granted as against him.
Notwithstanding that some of the observations
in the judgment are widely expressed, the ground of the decision really is that
when the Official Receiver accepted rent from the tenant, that amounted to an affordance
of the lease by him, and that would have the effect of bringing section 5(3)
directly into play and conferring on the tenant the status of a raiyat. The
decisions discussed above do not lay down any acceptable principle that a lease
by a mortgagee which is protected by section 76(a) of the Transfer of Property
Act, operates by itself to confer a right of occupancy on the tenant under
section 21 of the Act.
Some argument was founded by the respondents
on the clause in Exhibits 2 and 3 that the mortgagee could get the lands
cultivated. It was contended that this clause conferred authority on the
mortgagee to settle raiyats on the lands, and that the tenants admitted in
pursuance of this authority would be in the same position as if they had been
admitted by the proprietor and the conditions of section 5(3) would be
satisfied. But then, the lands are private lands, and the clause in question is
followed by the provision that on redemption the mortgagors would be entitled
to resume "sir and khas possession", and that would be rendered nugatory
if the deed is construed as authorising the mortgagees to settle tenants on the
lands with the status of raiyats. The authority to get lands cultivated can
only mean (1) A.I.R. 1937 Cal. 763.
3 18 getting them cultivated through hired
labour as contemplated in the definition of 'private lands'. We are clearly of
opinion that the mortgage deed conferred no authority on the mortgagees to
admit tenants so as to confer on them rights of occupancy.
In the result, we must old that the
defendants of the second party have failed to establish that they have any
rights of occupancy over the suit lands, and that the plaintiffs are
accordingly entitled to a decree in ejectment, with future mesne profits as
claimed in the plaint. This appeal is allowed, the decree of the lower court is
set aside, and that of the Subordinate Judge of Monghyr restored as against 2nd
party defendants with costs throughout. The suit as against the first party
defendants is dismissed, but in the circumstances, there will be no order as to