Case: Harihar Prasad Singh And Another Vs. Must. Of Munshi Nath Prasadand Others

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 sudbharana deeds, Exhibits 2 and 3, for a sum of Rs.defendants of 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 suit1943 they deposited under S. 83, T. P. 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 becamethe 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.2. The plaintiffs alleged that the lands were kamat khudkasht, which had been in the personal enjoyment of Khiran Rai and Firangi Rai and therefore 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 thethe alternative the plaintiffs claimed damages against the defendants of the first party, if it was found that the second party had 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 thepleaded 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.3. The Subordinate Judge of Monghyr 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 had 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 27-5-1905, 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 inthis 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 tothe 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 bona fide transaction and the recognition of the defendants of the second party by the mortgagees as tenants would confer occupancy rights onthe result, the suit was dismissed. The plaintiffs appeal.

Reasoning:
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 S. 13, 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 is1(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.They simply trust to the presumptions in their favour enacted in Ss. 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 oneargument proceeds on a misconception about the true scope of S. 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 theonly provides that when that is proved, it shall be recorded as private land. But when not 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 Evidencethe reasons already given, we are of opinion that it is sufficient to justify a finding in theA-1 and A-1(1) are certified copies of the objection petitions stated to have been filed by the mortgagors under S. 103-A of the Act, and they purport to have been signed by one Chulai Mahto as karpardaz of some of theplaintiffs 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 S. 90, Evidence Act, in favour of theiris 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 S. 21 of thewas 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 byrecitals 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 wereis, therefore, must to be said for the contention of the appellants that the proceedings evidenced by Exhibits A-1 and A-1 (1) were collusive inplaintiffs 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 S. 103-B equally with that under S. 120(2) becomes displaced. In the result, we are of opinion that the suit lands are the private lands of thethe 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 thatpoint 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 Ss. 106 andmortgagee 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 anquestion whether for purposes of S. 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 v. Harbans Narian Singh, AIR 1952 SC 205    at p. 207 (F), 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 S. 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 fromthat 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 Ss. 5(2) and 5(3), and no occupancy rights could therefore be acquired by them under section 21 of theargument proceeds on a confusion of two wholly independent concepts distinct in their origin and different in their legalthe present case, assuming that the mortgagees had the power under S. 76(a), T. P. 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 given them the right to continue in possession after the termination of the agricultural year during which the redemption takesthis view, the power of the mortgagee under S. 76(a), T. P. Act, to induct tenants in the usual course of management would not avail the respondents to claim occupancy rights over theif the respondents cannot resist the suit for ejectment either by reason of S. 76(a), T. P. Act, or S. 21, Bihar Tenancy Act, it is difficult to see how they could get such a right as the result of the interaction of both thosedecision 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 kamatprinciple of the decision in 20 Cal 708    (L) does not therefore support the conclusion in AIR 1930 Cal 738    (H) that a tenant admitted by a mortgagee into possession acquires the status of adecisions discussed above do not lay down any acceptable principle that the lease by a mortgagee which is protected by S. 76(a), T. P. Act, operates by itself to confer a right of occupancy on the tenant under S. 21 of thethen, 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 ofauthority to get lands cultivated can only mean 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 the confer on them rights of occupancy.19. In the result, we must hold 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