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PETITIONER: MAHESH BHAGAT

       Vs.

RESPONDENT: RAM BARAN MAHTO & ORS.

DATE OF JUDGMENT: 11/04/1968

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. HEGDE, K.S.

CITATION:  1968 AIR 1466            1968 SCR  (3) 742

ACT: Bihar   Tenancy   Act  (Act  8  of   1885)--Sections   5(2), 21(1)--Construction  of deed--whether lease  or  usufructory mortgage Tenure-holder prohibited from executing leases  for terms  extending  beyond  the term  of  the  tenure--Tenants inducted   by  tenure-holder--Whether   acquires   occupancy rights.

HEADNOTE: A,  the predecessor-in-interest of the plaintiff executed  a thika  patta in favour of B, in respect of a village  for  a term  of  40 years from 1320 to 1959 fasli, the rent  to  be appropriated up to 1344 fasli towards satisfaction of  debts owing from A to B and others.  The patta B stipulated that B could  not execute a lease in favour of any tenant  for  any term  extending beyond 1359 fasli.  B settled plots  in  the village  with the predecessors-interest of  the  defendants. The  first  settlement  was for 5 years from  1347  to  1351 fasli.   The second settlement was for 5 years from 1352  to 1356  fasli.   The  tenants  were  settled  raiyats  of  the village.   After the expiry of the term of the thika  patta, the  plaintiff instituted a suit for recovery of  possession of  the plots.  The Courts below dismissed the suit.  In  an appeal  to  this Court it was contended that (1)  the  thika patta was a mortgage and not a lease and the mortgagee B had no authority to induct raiyats, and (ii) that assuming  that it was a lease, B had no authority to settle raiyats  having occupancy  rights enuring after the expiry of the lease.  it was  conceded that if the thika patta was a lease, B  was  a tenure-holder. HELD:     dismissing the appeal, (1)  The  thika  patta  was a lease and  not  a  usufructory mortgage.  The gist of the document was letting for the full term of 40 years.  There was no express or implied grant  of a  right  of  redemption  on repayment  of  the  loan.   The document  was not intended to create relationship of  debtor and creditor or a security for the repayment of a debt; [744 D] (2)  The  tenants  of B, having acquired the right  to  hold land as cultivating tenants of a tenure-holder, were raiyats as  defined  in  s.  5(2) of the  Bihar  Tenancy  Act.   The tenancies  were  lawful  at  their  inception.   B  was  not

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prohibited by the thika patta from inducting raiyats on  the land.  In spite of the stipulation in the patta that B would not  execute  a  lease in favour of any tenant  for  a  term extending beyond 1359 fasli, the tenants acquired the  right to  hold  the land as raiyats.  As settled  raiyats  of  the village  they got rights of occupancy in the lands under  s. 21(1) of the Act. [745 A-B] The  general  rule is that no one can confer  on  another  a better title than he himself has.  B could not make a  grant of  the  right to occupy the lands after the expiry  of  the lease in its favour.  But the right of occupancy is not  the creation of any grant from B. It is conferred by s. 21  (1). As  the tenants are raiyats, the law steps in  and  protects them from eviction. [745 B-C] Mahabir  Gope  v. Harbans Narain Singh, [1952]  S.C.R.  775, distinguished. Atal  Chandra  Rishi  v. Lakhi Narain Ghose  10,  C.L.T.  55 approved.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 394 of 1965. 743 Appeal  by special leave from the judgment and decree  dated December  22,  1961 of the Patna High Court in  Appeal  from Original Decree No. 277 of 1956. Sarjoo Prasad and D. Goburdhun. for the appellant. Yogeshwar  Prasad and Hardev Singh, for respondents Nos.   1 and 13 to 18. The Judgment of the Court was delivered by  Bachawat, J.--On July 15, 1912 Abdul Karim the predecessor- in-interest  of  the  plaintiff executed in  favour  of  the proprietors  of an indigo concern collectively known as  the Bhikhanpur Kothi a thika patta (Ex. 4) in respect of village Khanjadpur  for a term of 40 years from 1320 to  1359  fasli corresponding to; 1913 to 1952.  By two patta Katkenas (Exs. A  and  Al)  dated  April 25, 1940  and  May  23,  1944  the Bhikhanpur  Kothi settled plots Nos. 183 and 184 in  village Khanjadpur   with   the  predecessors-in-interest   of   the contesting  defendants.  The first settlement was  for  five years  from 1347 to 1351 fasli.  The second  settlement  was for  five  years from 1352 to 1356 fasli.  The term  of  the thika  patta (Ex. 4) expired in 1359 fasli.   Thereafter  on April  24,  1953  the  plaintiff  instituted  the  suit  for recovery  of  possession of the plots.  He  also  asked  for certain  other  reliefs with which we are not  concerned  in this appeal.  The trial court found that (1) plots Nos.  183 and  184 were bakasht and not zeriat lands, (2) the  tenants under Ex.  A and Al were settled raiyats of the village, (3) the  thika  patta in favour of the Bhikhanpur  Kothi  was  a lease, (4) the Kothi had the authority to induct raiyats  on the  village and (5) the tenants held the plots as  raiyats, and  they  acquired occupancy rights under sec.  21  of  the Bihar  Tenancy  Act.   On these  findings  the  trial  court disallowed the plaintiff’s claim for recovery of  possession of  plots Nos. 183 and’ 184.  The plaintiff filed an  appeal in  the  High  Court of Patna.  Before the  High  Court  the plaintiff  did not dispute the correctness of the first  two findings of the trial court.  The High Court agreed with the other findings and dismissed the appeal.  The plaintiff  has now  filed this appeal after obtaining special  leave,  from this Court. In this Court Mr. Sarjoo Prasad contended (1) that Ex. 4 was a  mortgage  and not a lease and the mortgagee under  Ex.  4

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had’ ,no authority to induct raiyats; (2) that assuming that Ex.  4  was a lease, the lessee had no authority  to  settle raiyats having occupancy rights enuring after the expiry  of the  lease.   We  are  unable. to  accept  either  of  these contentions. Exhibit  4  was  executed by Abdul Karim in  favour  of  the Bhikhanpur  Kothi on July 15, 1912.  It was styled  a  thika patta.    It  provided  that  the  kothi  would  remain   in possession of Khanjad- 8 Sup.  CI/68--8 744 pur village for a term of 40 years from’ 1320 to 1359  fasli on payment of a fixed annual jama of Rs. 6,203/4/-.  Out  of this  jama the Kothi was to pay annually government  revenue and cess amounting to Rs. 1,203/4/-.  It appears that on the same  day Abdul Karim took loans from the  Bhikhanpur  Kothi and  two  ladies  on executing two separate  bonds.   Ex.  4 provides  that  between 1320 to 1331 fasli the  balance  Rs. 5,000  of  the  annual jama would be  paid  or  appropriated towards  the liquidation of the two debts and  between  1332 and   1344   fasli  would  be  appropriated   towards   full satisfaction of the debt due to the Kothi.  The deed further provided  that  from 1345 fasli until 1359 fasli  the  Kothi would  pay the entire balance of Rs. 5,000 to  Abdul  Karim. It is to be noticed that the ladies were not parties to  Ex. 4.  The  loan was taken from the Kothi on a  separate  bond. Ex. 4 provided for the repayment of the loan, but the  Kothi was entitled to remain in possession for 15 years after  the loan  was fully satisfied.  The gist of the document  was  a letting of the village for the full term of 40 years.  There was no express or implied grant of a right of redemption  of the village on repayment of the loan.  The document was  not intended to create a relationship of debtor and creditor  or a security for the repayment of a debt.  In our opinion, the transaction was a lease and not a usufructuary mortgage. The  question then is whether the tenants of the  Bhikhanpur Kothi  acquired occupancy rights in plots Nos. 183 and  184. Section 21 (1) of the Bihar Tenancy Act 1885 (Act 8 of 1885) reads : "S. 21 (1) Every person who is a settled raiyat of a village within the, meaning of the last foregoing section shall have a right of occupancy in all land for the time being held  by him as a raiyat in that village." A  settled  raiyat  of a village is defined in s.  20  as  a person  who for a period of 12 years continuously held  land in  that  village  as a raiyat.  It  is  conceded  that  the tenants  were settled raiyats of village  Khanjadpur  within the  meaning  of s. 20.  The question then is  whether  they held  the plots as raiyats.  Under S. 5 (2) a "raiyat" is  a person  who  has  acquired  a  right  to  hold  land  as   a cultivating tenant either of the proprietor or of the tenure holder.   Now  the  sub-lessees under Exs.  A  and  Al  were cultivating tenants of the Bhikhanpur Kothi.  Exs.  A and Al provided that the tenants would cultivate plots 183 and 184, get  the  same  cultivated by  others  and  appropriate  the produce thereof.  It is conceded that if Ex. 4 was a  lease, the  Bhikhanpur Kothi was a tenure holder.  However,  Ex.  4 stipulated  that the Bhikhanpur Kothi should not  execute  a lease  patta in favour of any tenant for any term  extending beyond  1359 fasli when the term of Ex. 4 would expire.   It 1,% argued that in view of this stipulation, the tenants  of the Bhikhanpur Kothi could not acquire the right to hold the lands after 1359 745 fasli.   Now  the settlements under Exs.  A and Al  did  not

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contravene Ex. 4. The term of the last settlement expired in 1356  fasli.  The tenancies were lawful at their  inception. The tenants acquired the right to hold the lands as raiyats. As  settled-raiyats  of  the  village  they  got  rights  of occupancy in the lands under s. 21 ( 1 ). The  general  rule is that no one can confer  on  another  a better  title  than he himself has.   The  Bhikhanpur  Kothi could  not  make a grant of the right to  occupy  the  lands after  the  expiry of the lease in their  favour.   But  the right  of occupancy is not the creation of any,, grant  from the  Kothi.  It is conferred by s. 21 (1).  As  the  tenants are  raiyats,  the  law  steps in  and  protects  them  from eviction. The  decision in Mahabir Gope v. Harbans Narain Singh(1)  is distinguishable.   In  that  case  the  mortgagee  from  the proprietor  settled  the  lands  with  an  ancestor  of  the defendant.  The mortgage deed prohibited the mortgagee  from inducting tenants on the lands.  The mortgagee was neither a proprietor  nor  a  tenure holder.  The  tenant  was  not  a settled  raiyat of the village.  In these circumstances  the Court  held  that the defendant did  not  acquire  occupancy rights  in the land under secs. 20 and 21 and was liable  to be ejected by the proprietor on redemption of the  mortgage. In  the present case the defendants are settled  raiyats  of the  village.  They held the lands as tenants of the  tenure holder.   There was no prohibition in the document  creating the  tenure against inducting raiyats on the land.  In  Atal Chandra  Rishi  v.  Lakhi  Narain  Ghose(2)  the  proprietor granted an ijara stipulating that the ijaradar would not  be competent  to grant a sub-lease which was to continue  after the  expiry  of the ijara.  The ijaradar settled  the  lands with  a  tenant.   The  possession  of  the  tenant  in  its inception was lawful.  The Calcutta High Court held that  in spite  of the stipulation in the ijara the tenant  became  a raiyat whose rights were regulated by the provisions of  the Bengal Tenancy Act and he could be ejected by the proprietor only  on  one  or more of the grounds specified  in  s.  44. Similarly  in  this case the tenancy in  its  inception  was lawful.  The tenants became raiyats and as they were settled raiyats of the village they acquired rights of occupancy and could  not be ejected except on one or more of  the  grounds mentioned in sec. 25. In   our   opinion,  the  predecessor-in-interest   of   the contesting  defendants  acquired occupancy rights  in  plots Nos. 183 and 184 and the courts below Tightly dismissed  the suit for recovery of possession of those plots. In the result, the appeal fails and is dismissed with costs. Appeal dismissed. Y.P. (1)  [1952] S. C. R. 775. (2)  10 C. L. J. 55. 746