# 7'4.2 MAHESH BHAGAT v. RAM BARAN MAHTO & ORS

- **Citation:** [1968] 3 S.C.R. 742
- **Court:** Supreme Court of India
- **Decided:** 1968-04-11
- **Bench:** R. S. Bachawat, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/7-4-2-mahesh-bhagat-v-ram-baran-mahto-ors-4339
- **Pages:** 4

## Headnote

Bih41' TellQllC)I Act (Act 8 of 1885)-SO<ltions 5(2), 21(1)-Conslrlletion of deed-whether least or usufructory nwrtll"ge TtnurNwlder prohibited from executing I.mes for terms extending beyond· the term of tM
tenure-Tenants inducted by tenure-holder-Whether acquires occupancy
riahts.
A, the predecessor~n-tnterest of the plaintiff executed a tbika 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 ro. 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 pmlecessara-ininterest of the defendants. The first settlement was for 5 years from 1347
to 1351 fasli. The s<cond settlement was for 5 years from 1352 to 13S6
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 r(covery of
possession of the plots. The Courts below dismissed the suit. In an appeal
to this Court it was contended that (I) the thika patta was a mortgase
and net a lease and the mortgagee B had no authority to induct raiyata,
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 : dismissin11 t~ 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 expres,s 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 DJ
(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 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 extendin~ beyond 1359 fasli, the tenants
acquired the right to hold the land as raiyats.
As settled raiyats of the
village tb"Y got rights of occupancy in the lands under s. 21 (!) of the
Act. [745 A-BJ
The jlffieral 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 n<>t the creation of any grant from B. It is conferred bys. 21(1).
As the tenants are raiyats, the law stePs in and protects them from eviction.
[745 B-Cl
Mahabir Gope v. Harbc:ns Narain Singh,
[1952] S.C.R. 775, dmtinJlllished.
Alill Chandra Rishl v. Lakhi Narain Ghose 10, C.L.J. 55 approved.
CIVIL APPELLATE JUitISDICTION : Civil Appeal No. 394 of
1965.
A
B
c
D
E
F
G
H
MAHESH BHAGAT v. RAM BARAN (Bachawat, J.)
743
A
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 Pras@ and D. Goburdhun, for the appellant.
Yogeshwar Prasad and Hardev Singh. for respondents Nos. 1
B
and 13 to 18.
c

## Text

l
7'4.2
MAHESH BHAGAT
v.
RAM BARAN MAHTO & ORS.
April 11, 1968
[R. S. BACHAWAT AND K. S. HEGDE, JJ.]
Bih41' TellQllC)I Act (Act 8 of 1885)-SO<ltions 5(2), 21(1)-Conslrlletion of deed-whether least or usufructory nwrtll"ge TtnurNwlder prohibited from executing I.mes for terms extending beyond· the term of tM
tenure-Tenants inducted by tenure-holder-Whether acquires occupancy
riahts.
A, the predecessor~n-tnterest of the plaintiff executed a tbika 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 ro. 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 pmlecessara-ininterest of the defendants. The first settlement was for 5 years from 1347
to 1351 fasli. The s<cond settlement was for 5 years from 1352 to 13S6
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 r(covery of
possession of the plots. The Courts below dismissed the suit. In an appeal
to this Court it was contended that (I) the thika patta was a mortgase
and net a lease and the mortgagee B had no authority to induct raiyata,
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 : dismissin11 t~ 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 expres,s 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 DJ
(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 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 extendin~ beyond 1359 fasli, the tenants
acquired the right to hold the land as raiyats.
As settled raiyats of the
village tb"Y got rights of occupancy in the lands under s. 21 (!) of the
Act. [745 A-BJ
The jlffieral 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 n<>t the creation of any grant from B. It is conferred bys. 21(1).
As the tenants are raiyats, the law stePs in and protects them from eviction.
[745 B-Cl
Mahabir Gope v. Harbc:ns Narain Singh,
[1952] S.C.R. 775, dmtinJlllished.
Alill Chandra Rishl v. Lakhi Narain Ghose 10, C.L.J. 55 approved.
CIVIL APPELLATE JUitISDICTION : Civil Appeal No. 394 of
1965.
A
B
c
D
E
F
G
H
MAHESH BHAGAT v. RAM BARAN (Bachawat, J.)
743
A
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 Pras@ and D. Goburdhun, for the appellant.
Yogeshwar Prasad and Hardev Singh. for respondents Nos. 1
B
and 13 to 18.
c
The Judgment of the Court was delivered by
Bachawat, J.-On July
15,
1912 Abdul
Karim the
predecessor-in-interest of the plai,ntilf 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 1339 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 134 7 to 13 51 fas Ii. The
D
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
E
raiyats of the village, ( 3) the thika patta in favour of the Bhikhanpur Kothi was a lease, ( 4) the Kothi had tl1e authority to induct
raiyats on the village and ( 5) tl1e tenants held tl1e plo1s as raiyat~
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 o! plots Nos. 183 and
F
I 84.
The plaintiff filed an appeal in the High Court of Patna.
G
H
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 tlie 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 had
no authority to induct raiyats; (2) that assuming that Ex. 4 wa~
a lease, the lessee had no authority to settle raiyats having c>ccuparicy 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 ihe
Bbjkhanpur Kothi on July 15, 1912. It was styled a thika patta.
It proVided that the kothi would remain in possession of Khanjad8 Sup. Cl/68--8
I
..
74{
SuPIU!MB. COUl.T llBPOl.TS
[1968) 3 S.C.R.
pW: village for a term of 40 years from'l320 to 1359 fasli on paymCllU of a fixed annual jama of Rs. 6,203/4/-. Out of this 1ama
the Kothi was to pay annually government revenue and cei;s
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 ol 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 fhe 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 I.ease ·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 ( l) 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
bciniheld 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
ai a raiyat. It is conceded that the tenants were settled raiyats of
village KOOnjadpur within the meaning of s. 20. The question
then is whether they held the plots as raiyats.
:U:~er s. 5(2) a
"raiyat" is a person who has acquired a right to ho~ land as a
cultivating tenant either of the proprietor or of the tenure holder:
Now the sub-lessees under Exs. A and A 1 were cultivating tenants
cl 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 Jenn of Ex. 4 would expire. It Is
argued that in view of this stipulation, the tenants of the Bhikhaitpur Kothi could not acquire the right to hold the lands after 1359
A
B
c
D
E
F
G
H
A
c
D
MAHESH BHAGAT v. RAM BARAN (Bachawat, J.)
745
fasli. Now the settlements under Exs. A and Al did .not 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 r(\iyats.
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. Bl!t 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(') 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 li!Ilds.
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 Jand under secs. 20 and 21 and was liable to
be ejected by the proprietor on redemption of the mortgage. In
the present case the de~endants 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 agafust inductE
ing raiyats on the land. In Atal Chandra Rishi v. Lakhi Narain
Ghose(') the proprietor granted an ijara stipulating that the ilaradar 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
F
G
H
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 rightly dismissed the suit for recovery .of
possession of those plots.
In the result, the appeal fails and is dismissed with costs.
Y.P.
Appeal dismissed,
(I) [19S2J S. C.R. 77S.
(2) 10 C. L 1: SS.