16 January 1956
Supreme Court


Case number: Appeal (civil) 107 of 1953






DATE OF JUDGMENT: 16/01/1956


CITATION:  1956 AIR  305            1956 SCR    1

ACT: Occupancy Bight-If can be acquired by lessce from  mortgage- Presumption  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), s. 90.

HEADNOTE: 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 and  deposited the amounts due on the mortgages in court under s. 83 of the Transfer  of  Property  Act, which  were  withdrawn  by  the representatives  of  the mortgagees and the  mortgages  were redeemed.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  mort- gagees  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, ([1917] 27 Cal.  L.J.  107)  and Bakub  Ali  v.  Muhammad Ali ([1928]  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,  ([1923] I.L.R.  2  Pat. 414) and Bindeshwari Prasad Singh  v.  Kisho Prasad Singh ([1926] L.R. 53 I.A. 164), relied on. That as the mortgagees were neither proprietors nor  tenure- holders  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 ([1952]  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), disap- proved. Binod  Lal Pakrashi v. Kalu Pramanik ([1893] I.L.R. 20  Cal. 708), doubted and held inapplicable. Pramatha  Noth  v.  Sashi Bhusan  (A.I.R.  1937  Cal.  763), distinguished. Case-law discussed. 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 ([1935] L.R. 62 I.A. 180), referred to.

JUDGMENT: 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  subject- matter  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  settle- ment  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-in- title 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   self- satisfaction", 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  inter-



parties.  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  lands. 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 kamat. (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 Officers". 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 juris et de jure that the lands are private.  But where such evidence  is  not available, that fact can still  be  estab- lished  by otber and satisfactory evidence.  What has to  be decided  therefore is whether the evidence actually  adduced by the plaintiffs in the present case is (1) [1923] I.L.R. 2 Patna 414. (2) [1926] 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, weare of opinion that it  is sufficient to justify a findidg in the affirmative. Strong reliance was placed by the respondents on Exhibits F- 1  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  mortgagors. 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)  [1935] 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 A- 1  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 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  ?   Thereis  therefore  much to  be  said  for  the contention  ofthe 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) [1917] 27 Cal.  L.J. 107.  (2) [1928] 49 Cal.  L.J. 352. 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 con, sidered 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)  [1962] 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 tenure- holders  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) [1926] 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)  [1926] 97 I.C. 852.           (2) [1922] 73 I.C. 359 (3)  [1896] 3 C.W.N. 13.            (4) A.I.R.   1930   Cal. 738. 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)  [1926] 97 I.C. 852,      (2) [1893] I.L.R. 20 Cal. 708. (3) [1903] 8 C.W.N. 315.      (4) [1916] 21 C.W.N. 93. (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  was  passed. 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 affirmance 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 costs.                         -----------