# THE SUPREME COURT REPORTS HARIHAR PRASAD SINGH AND ANOTHER v. MUST. OF MUNSHI NATH PRASAD AND OTHERS

- **Citation:** [1956] 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1956-01-16
- **Bench:** VIVIAN BosE, Venkatarama Ayyar, 0Handrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-supreme-court-reports-harihar-prasad-singh-and-another-v-must-of-munshi-1303
- **Pages:** 18

## Headnote

Occupancy Right-If can be acquired by lessee from mortgageePresumption of record of rights-How rebutted-Proprietor's private
land-Mode of proof-Bihar Tenancy Act (VIII of 1885), ss. 5(3),
21, 108-B, 120(2)-Transfer of Property Act (IV of 1882), s. 7C(a)
-Evidence Act (I of 1872), a. 90.
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which were withdrawn by the representatives of the mortgagees and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 khe.s
possession of the lands by tenants who were recorded e.s "settled
raiyata" in the finally published record of rights and brought the
suit for recovery of possession from the tenants and, e.lternatively,
for ilamages against the representatives of the mortgagees. The sub·
ordinate Judge found that the lands were the private lands of the
proprietors and the tenants were inducted not by them but by the·
modgagees 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 confened on them rights
of occupancy in the suit lands and dismissed the suit. The respon·
dents relied on the presumptions under ss. 103-B and 120(2) of the
Bihar Tenancy Act and contended that the recognition by the mart·
go.gees 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 huh merely
raisesa presumption under s. 103-B of the Act that such rights exist,
which can be rebutted if it can be shown that the materials on which
it was based do not justify it.
Bogha Mow~r v. Ram Lakhan, ((1917) 27 Cal. L.J. 107) and
Eakub Ali v. Muhammad Ali ((1928) 49 Cal. L.J. 352), referred to.
That where, as in the present ca.se, no evidence was produced
before the authority who made the record, one bas only to produce
January 16
1956
Harihar Prasad
Singh and another
v.
t.f11st. of M11nslii
Nath Prasad
and others
2
SUPREME COURT REPORTS
[1956]
such evidence as satisfies the court in order to rebut the presumption. This is equally true with regard to the presumption enacted
bys. 120(2) of the Act with regard to the proprietor's private land.
That s. 120 of the Bibar 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 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 ([1952] S.C.R. 775).
applied.
Nor could the provisions of s. 76 (a) of the Transfer of Property
Act ha of any avail. Assuming that the lease grantad by the mortgagees continuad oven altar termination of tho period fixed therain,
that could confer on tho lassees no more than the status of tenants
from ysar to yaar, in which case, their possession would cease with
tho termination of the agricultural year during which the mortgages
wera radaamed.
Rajendra Nath v. Dinu Pradhan (A.I.R. 1930 Cal. 738), disapprovad.
Binod Lal Pakrashi v. Kal1t Pramanik ((1893] I.L.R. 20 Cal.
708), doubted and hold inapplicable.
Pramatha Nath v

## Text

_Characters 0–39,954 of 41,031. This is a partial read: ask again with offset=39954 for what follows._

THE SUPREME COURT REPORTS
HARIHAR PRASAD SINGH AND ANOTHER
1956
v.
MUST. OF MUNSHI NATH PRASAD
AND OTHERS.
[VIVIAN BosE, VENKATARAMA AYYAR and
0HANDRASEKHARA AIYAR JJ.]
Occupancy Right-If can be acquired by lessee from mortgageePresumption of record of rights-How rebutted-Proprietor's private
land-Mode of proof-Bihar Tenancy Act (VIII of 1885), ss. 5(3),
21, 108-B, 120(2)-Transfer of Property Act (IV of 1882), s. 7C(a)
-Evidence Act (I of 1872), a. 90.
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 khe.s
possession of the lands by tenants who were recorded e.s "settled
raiyata" in the finally published record of rights and brought the
suit for recovery of possession from the tenants and, e.lternatively,
for ilamages against the representatives of the mortgagees. The sub·
ordinate Judge found that the lands were the private lands of the
proprietors and the tenants were inducted not by them but by the·
modgagees 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 confened on them rights
of occupancy in the suit lands and dismissed the suit. The respon·
dents relied on the presumptions under ss. 103-B and 120(2) of the
Bihar Tenancy Act and contended that the recognition by the mart·
go.gees 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 huh merely
raisesa presumption under s. 103-B of the Act that such rights exist,
which can be rebutted if it can be shown that the materials on which
it was based do not justify it.
Bogha Mow~r v. Ram Lakhan, ((1917) 27 Cal. L.J. 107) and
Eakub Ali v. Muhammad Ali ((1928) 49 Cal. L.J. 352), referred to.
That where, as in the present ca.se, no evidence was produced
before the authority who made the record, one bas only to produce
January 16
1956
Harihar Prasad
Singh and another
v.
t.f11st. of M11nslii
Nath Prasad
and others
2
SUPREME COURT REPORTS
[1956]
such evidence as satisfies the court in order to rebut the presumption. This is equally true with regard to the presumption enacted
bys. 120(2) of the Act with regard to the proprietor's private land.
That s. 120 of the Bibar 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 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 ([1952] S.C.R. 775).
applied.
Nor could the provisions of s. 76 (a) of the Transfer of Property
Act ha of any avail. Assuming that the lease grantad by the mortgagees continuad oven altar termination of tho period fixed therain,
that could confer on tho lassees no more than the status of tenants
from ysar to yaar, in which case, their possession would cease with
tho termination of the agricultural year during which the mortgages
wera radaamed.
Rajendra Nath v. Dinu Pradhan (A.I.R. 1930 Cal. 738), disapprovad.
Binod Lal Pakrashi v. Kal1t Pramanik ((1893] I.L.R. 20 Cal.
708), doubted and hold inapplicable.
Pramatha Nath v. Bashi Bhltsan (A.I.R. 1937 Cal. 763), <listing•
uishad.
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 a.gent to act £or another.
Basant v. Brijraj ((1935] L.R. 62 I.A. 180), referred to.
C1v1L APPELLATE JuR1SD1CTloN: 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 268of1945 arising out of the decree dated the 9th
)
S.C.R.
SUPREME' COURT REPORTS
3
1956
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.
Harihar Prasad
Singh a11d a11at/1er
Taraehand Brijmohanlal, B. 0. Misra e..nd 8.
1 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 1
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.
v.
Must. of M11nsl1i
N atli Prasad
and others
4
SUPREME COURT REPORTS
[1956]
1956
• The plaintiffs alleged that the lands were 'kamat
R
.h
P
4 khudkast', which had been in the personal enjoyment
Sin";: ::a;;:~., of Khira~ Rai and Firangi Rai and thereafter of the
v.
mortgagees and the defendants of the first party by
Mun. of Mrmshi virtue of the sudbharna deeds, Exhibits 2 and 3, that
Nalh Prasad
the second party defendants claimed rights as occuand others
·
d
1
b
h
pancy ra1yats un er a sett eme.nt y t e mortgagees,
Vcnkalarama
that the settlement was not real or bona fide, and was
Ayyar J.
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 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 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 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 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 witn 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
•
-
S.C.R.
SUPREME COURT REPORTS
5
bona fide transaction, and that the recognition of the
1956
defendants of the second party by the mortgagees as ..,.
.h
P
..
,
I
n:aN ar rasa,,.
tenants would confer occupancy rights on them.
n Singh and another
the result, the suit was dismissed. The plaintiffs apv.
peal. It may be stated that the alternative claim for Must. of Munshi
damages against the first party was abandoned by
Nath Prasad
1.
the plaintiffs, and the only relief now claimed is posand others
session of lands as against the second party. Mr.
Venkatarama
Misra, counsel for the first p~rty, had accordingly
A;nar J.
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 tha second party appearing by counsel Mr.
Tarachand Brijmohan Lal, that vigorously con-
•
tested 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 sid'es 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
SUPREME COURT REPORTS
[1956]
1956
of the suit lands. Therein, it is recited that the
HariharPrasad mortgagors. "mortg~ge, _hypothecate a~d render liabl~
Singh and another the properties const1tutmg the proprretory mukarn
v.
interest, with all the zamindari rights and claims inMust. of Munshi eluding the khudkasht kamat lands".
The word
Nath Prasad
'khudkasht' means personal cultivation, and that is
and others
a neutral expression, which might include both pri-
•
V•nkatarama
vate lands and bakasht lands, that is to say, raiyati
AnarJ.
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 da,te 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 that 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 tliey 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
proba.tive value as against them and as against the
second party defendants who claim under them is
high. Exhibit 1 (b) is a simple mortgage executed by
Firangi Rai and others on 21-12-1901 in favour of
one Ch ho tu Singh over· some properties forming part
of the suit lands. It also contains the recital that
these properties are kamat khudkasht landa.
There
•
•
S.C.R.
SUPREME COURT REPORTS
7
is finally the lease deed executed in favour of the first
111s6
P'."rty by the defe~dants of the secon~ party, Ex.hiHarihar Prasatl
bit 2(a) under which the latter came into possession Singhantlanother
of the lands. It recites that the lands had been in
v.
·
the exclusive cultivation of Babu Nath Prasad and Must. of Munshi
Babu Misri Lal, that the lessees will give up possesNath Prasad
sion of the lands at the end of the term which was a
and others
period of 2 years, and that the lessors will be "comVenkatarama
patent to bring the lands mentioned in this kabuliat
Ayyar J.
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 proprietor 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
SUPREME COURT REPORTS
(1956]
of March, 1883, specifically let as proprietor's private
HariharPrasad land, and to any other evidence that may be proSingh and another duced; but shall presume that land is not a propriev.
tor's private land until the contrary is shown.
1956
Must. of Mumhi
*
*
*
Nath Prasad
and others
(3) If any question arises in a Civil Court as to
Venkatarama
A:;yar J.
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 Kesko Praead Singh v.
Parmeshri Prasad Singh('), and on appeal, the Privy
Council agreed with it in Bindeshwari Prasad Singh
v. Maharaja Kesko Prasad Singh(').
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 arc private. But where such evidence is not available, that fact can still be est ab·
lished by other and satisfactory evidence. What has
to be decided therefore is whether the evidence actu·
ally adduced by the plain tiffs in the present case is
(1) [1928J I.L.R. 2 P•tna 41'.
(2) [1020J es I.A. 10,,
•
-
'
S.C.R.
SUPREME COURT REPORTS
9
sufficient to discharge the burden which the law casts
19S6
on them and to prove that the lands are 'kamat' or H .h-P
~
c • ' 1 d
F
th
l
d
·
f
ar• ar rasau
sir an s.
or
e reasons a rea y given, we are o Singh and another
opinion that it is sufficient to justify a finding in the
v.
affirmative.
Must. of Munshi
Strong reliance was placed by the respondents on
Nath Prasad
Exhibits F-1 and F-1(1) which are kbatians relating
and others
to the suit lands published on 7-12-1909 recording
Vmkatarama
them as in the possession of the defendants of the
AyyarJ.
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 plain tiffs,
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·l(l) 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·l and A-1(1) and also the
authority of Chulai Mahto to represent the mort·
gagors. There is no evidence that the signatur~s on
ExbibitsA-1 and A·l(l) 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·l and A·l(l) 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 ori·
ginal 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 a.gent,
(1) [1981!] 69 I.A, 180,
II
10
SUPREME COURT REPORTS
[1956]
1956
and section 90 does not authorise the raising of a
R
.1
P
d presumption as to the existence of authority on the
ari iar rasa
h
. M h
.
Singh and another part of C ulai
a to to represent the mortgagors.
v.
It is again to be noted that the objection on the
Must. of Munshi merits raised in Exhibits A-1 and A-1(1) that the
Nath Prasad
lands are bakasht lands in the possession of mort-
,
and others
gagees is not one which it was to the interests of the
Vcnkatarama
mortgagors to put forward, as, if accepted, it would
AyyarJ.
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? 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
-
..
S.C.R.
SUPREME COURT REPORTS
11
would not materially affect the result, as the true
1956
effect o. f a record of rights under section 103-A is not ,,
• h
h
•
d b
•
l
narihar Prasad
to create rig ts w ere none ex1ste
ut s1mp y to Singh and nother
raise a presumption under section 103-B that such
/
rights exist, and that presumption is one liable to be Must. of Munshi
rebutted. There is a long line of authorities that a
Nath Prasad
person who attacks a record made under section 103-A
and others
as incorrect discharges the burden which the law casts
Venkatarama
on him under section 103-B by showing that it was
AyyarJ.
not justified on the materials on which it is based.
Vide Bogha Mower v. Ram Lakhan(1) and Eakub Ali
v. Muhammad Ali(9). 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 aisplaced. 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 acquisition 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 Olll. L.J. 107.
(2) [1928] 49 Cal. L.J. 852.
12
SUPREME COURT REPORTS
[1956]
1956
the holdings even after the expiry of the term under
R
"h
Pr
4 Exhibit 2(a), paid the rent to the mortgagees who
Sin~~ a":.a .,:::~., recognised them as tenants, and that their status
v.
therefore was not that of tenants holding under a
Must. of Mt,,.shi lease for a term or from year to year, and that acNath Prasad
cordingly there was no impediment to their acquiring
andoth•r&
occupancy rights under Chapter V.
The point has
Venkata1"ama
not been argued whether, as Exhibit 2(a) is an agriAyyarJ.
cultural 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 not the
creatures or servants of the mortgagees, and that
they had been in continuous possession paying rept
to them, section 116 di.cl 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 iiime 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 hold land for
the purpose of cultivating it by himself or members
of his family or servants or partners, and section 5(8)
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-holder".
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 6(2)
and 6(8), and as the defendants of the second party
acquired the right to hold the lands for the purpose of
c.ultivation from the first party mortgagees and not
under the mortgagors, they are not raiyats as defined
in section 5(8), and can claim•no rights under section
21. On behaff of the tenants, it was contended that
as under section 58 of the Transfer of Property Act a
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SUPREME COURT REPOR.TS
13
mortgage is a transfer of in~erest in land, the mort-
~
gagee is the owner of that interest and therefore a
H
.h
Pr
4
proprietor for the purpose of section 5(3). Section 3(2) Sin~~ a':.t a:O~~er
defines a proprietor as meaning a person owning whev.
ther in trust or for his own benefit an estate or part Mun. o/ Munshi
of an estate. A mortgagee is no doubt the transferee
Nath Prasatl
bl
d
·
antl others
of an interest in immova e property, an may rn a
loose sense be said to be the owner of that interest.
Venkatarama
But the definition of a proprietor requires that he
AyyarJ.
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 observedinGhose
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. Harbans
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
(ll [1902] s.c.R. 776, 1s1.
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SUPREME COURT REPORTS
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(1956)
1956
clause would apply only if the lands had to be
H
.h
P
d brought afresh under cultivation, and that was not
art ar rasa
th
't'
h
A
h
, h
Singh and another
e post ton ere.
s t e mortgagees are ne1t er prov.
prietors nor tenure-holders as defined in the Act, the
Must. of Munshi tenants holding under them could not claim to be
Nath Prasad
raiyats as defined in sections 5(2) and 5(3), and no
and other.
occupancy rights could therefore be acquired by them
Venkatarama
under section 21 of the Act.
Ayyar J.
It was next contended that the mortgagees bad 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('), Rajendra Nath v. Dinu
Prodhan(9) and Pramatha Nath v. Bashi Bhusan(')
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 be 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 had 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 t~e termination
of the agricultural year during which the redemption
(1) [1926) 97 I.O. 8~2.
(2) A.I.R, 1980 Oal, 788,
.
(3) A.I.R. 1987 Ool. 768.
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•
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fi.SJ.R.
SUPREME COURT REPORTS
15
.
.
1956
takes place:.In this view, the power of the mortgagee
under s"ectiEMl 76(a) of the Transfer of Property Act
•
flarihar Prasad
to indllJ)t ten.ants in the usual course of management
would not avail the respondents to claim occupancy
Singh and another
right~over the lands. .
.
Turning next to the provisions of th.e Bihar Tenancy
Act, section°21 rpnfers on settled raiyats a permanent
ri"
0 ht. of occupancy, p. rovided the conditions menv.
lllust. of :4Iunshi
Nath Prasad
and others
Venkatarama
tioned in that sectbn are satisfied. But this right is
AyyarJ..
a cteatu~ of the statu~e, 1'nd cannot be claimed
apart from its provisio::is. A mortgagee is, as already
..stated, neithet a proprietor nor a tenure-holder, and
a person °settled by him on the land does not~njoy
the stattus of a raiyat under sections 5(2) and 5(3).
1Ie 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
bj" reason of section 76(a) of the Transfer of Property
Act or seetion 21 of the Bihar Tenancy Act, it is
diffictlt to see how they could get such a right as the
result of the interaction of both those sections.
In .1fanjhil Lal Bisu:a Nath Bah Deo v. JJ1ahiuddin(1),
t'he suit was by a mortgagor after redemption to re-
•cover possession of lands, which had been leased by
the mortgagee. The proprietor claimed that the lands
wero zirait; but the finding, however, was that they
were• raiyat lands, and that tl::e mortgagee had ·
·inducted tenants into possession in the usual course
of management. It was held that the tenavts could
not be ejected.
The decision was expressly based
011 the fact that the lands were raiyati lands, and the
learned Judges distinguished the cases in Mahadeo
Prasad .Sahu v. Gajadhar Prasad Sahu(') and Jogeshwar JJ!azumdar v. Abed JJ!ahomed Sirkar(3) on the
ground thflt the lands which were the subject of
mo•tgag~therein were zerait lands. . This decision
does not support the' broad proposition for which the
"rl'lflllondents contend, and is really against them, as
the mortgage in the present case is of 'kamat' lands.
°In Rajendra Nath v. Di nu Pradhan('), the facts were
u, [1926J 97 1:c. 852.
(3) [1686] 3 C.W.!'1. 13 .
•
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•
(9) [1922] 73 I.C. 358. ·
(i) A.I.R. 1930 Cal, 738.
•
1956
Hariha' PrasatJ.
S·ingh cind another
v.
Musi, of MUffshl
Nath Prasad
and others
Venkatarama
AyyarJ.
16
SUPREME COURT REPORTS
[1956]
similar to those in Manjhil Lal Biswa Nath Bah Deo
v. Mahiuddin('), except that the lands do not
appear to have been raiyati lands.
In holding that
the mortgagor was not entitled to possession, Guba, 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(") 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. Ralhika Mohun
Hazra(~) and Krishna Nath Ohakrabarty v. Mahomed
Wafiz('), the basis of the decision in Binad Lal
Pakrashi v. Kalu Pramanik(") was that the word
"proprietor" in section 5(3) would include a de facto
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 Pakrashi v.
Kalu Pramanik(2) does not therefore support the conclusion in Rajendra Nath v. Dinu Pradhan(') that a
tenant admitted by a mortgagee into possession acquires the status of a raiyat.
(1) [1926] 97 LC. 852.
(2) [1898] LL.R. 20 Cal. 708.
(8) [1908] B O.W.N. 815.
(4) [1916] 21 C.W.N. 98.
(5) A.LR. 1980 Cal. 788.
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11
In Pramatha Nath v. Sashi Bhusan(1), a permanent
7956
lease was granted by a· mortgagee after he had obH
.h
P
,,
.
S b
l
h
ari ar rasa ..
tamed a decree for foreclosure.
U sequent y, t at Singh a"d another
decree was recalled in a suit by the Official Receiver
v.
representing one of the mortgagors and a fresh decree Must. of Munshi
for redemption was passed.
After redemption, the
Nath Prasad
Official Receiver received rent from the lessee treat- ·
and others
ing him as a tenant on the land. A transferee from
Venkaturama
the Official Receiver having subsequently instituted
Ayyar J.
a suit in ejectment against the tenant, it was held
that the latter had 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 bn 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.
s
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SUPREME COURT REPORTS
[1956]
1956
getting them. cultivated through hired labour as conn 'h
P1'
4 templated in the definition of 'private lands'. We are
Sin~~ a":<I a=he• clearly of opinion that the mortgage deed conferred
v.
no authority on the mortgagees to admit tenants so
Musi .• of Munshi as to confer on them rights of occupancy.
Nath P,.asad
In the result, we must hold that the defendants of
and other.
· the .second party have failed to establish that they
Venkatarama
have any rights of occupancy over the suit lands, and
Ayyar 1.
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, a'nd that of the Subordinate
Judge of Monghyr restored as against 2nd party
defendants with costs throughout.
The suit as
agairist the first party defendants is dismissed, but
in the circumstances, there will be no order as to costs.
1956
January 17
THE STATE OF BOMBAY
v.
R. S. NANJI.
[S. R. DAS, ACTING c. J., BHAGWATI, JAGANNADHADAS, B. P. SINHA AND JAFER !MAM JJ.)
Bombay' Land Requisition Act, 1948 (BomblJ.y Act XXXIII of
1948), s.