Harihar Prasad Singh And Another vs Must. Of Munshi Nath Prasad and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 107 of 1953

Decision Date: 16 January 1956

Coram: T.L. Venkatarama Ayyar, Vivian Bose, N. Chandrasekhara

In the matter titled Harihar Prasad Singh and Another versus Must. of Munshi Nath Prasad and Others, the Supreme Court of India delivered its judgment on 16 January 1956. The opinion was authored by Justice Vivian Bose and the bench comprised Justices Aiyar, T. L. Venkatarama, and Vivian Bose. The citation for the decision is reported as 1956 AIR 305 and 1956 SCR 1. The issues presented involved the question of whether a lessee could acquire occupancy rights from a mortgagee, the effect of presumptions created by entries in the record of rights, the method for rebutting such presumptions, the nature of a proprietor’s private land, and the appropriate mode of proof. The statutes relevant to the dispute were the Bihar Tenancy Act of 1885, specifically sections 5(3), 21, 103-B, and 120(2); the Transfer of Property Act of 1882, section 76(a); and the Evidence Act of 1872, section 90.

The petitioners, who were the purchasers of the mortgagors’ interests in the agricultural lands that formed the subject of the suit, had deposited the sums due on the mortgages in court pursuant to section 83 of the Transfer of Property Act. Those deposits were subsequently withdrawn by representatives of the mortgagees, and the mortgages were redeemed. The petitioners then encountered resistance when they attempted to take actual possession of the lands because tenants, recorded in the finally published record of rights as “settled raiyats,” refused to vacate. Consequently, the petitioners instituted proceedings seeking either the recovery of possession from the tenants or, in the alternative, damages against the mortgagees’ representatives.

The trial judge found that the lands were the private property of the original proprietors and concluded that the tenants had been inducted by the mortgagees under a lease that was neither bona-fide nor binding upon the petitioners. On that basis, the judge granted a decree of ejectment in favour of the petitioners. On appeal, the High Court reached a contrary conclusion, holding that the lands were not the mortgagors’ private lands, that the lease granted by the mortgagees was bona-fide, and that the recognition of the lessees as tenants by the mortgagees conferred occupancy rights upon them under the Bihar Tenancy Act. Accordingly, the High Court dismissed the petitioners’ suit.

The respondents relied on the presumptions created by sections 103-B and 120(2) of the Bihar Tenancy Act, arguing that the mortgagees’ acknowledgment of the tenants’ rights gave those tenants occupancy rights under the Act. The Supreme Court held that an entry in the record of rights made under section 103-A does not itself create rights; it merely raises a presumption under section 103-B that such rights exist. That presumption is reversible if the material on which the entry was based fails to justify it. The Court referred to the authorities Bogha Mower v Ram Lakhan and Bakub Ali v Muhammad Ali in support of this principle. The Court further observed that where no evidence was produced before the authority that prepared the record, it is sufficient for the party seeking to rebut the presumption to produce two pieces of evidence that satisfy the court. The same standard applies to the presumption created by section 120(2) concerning the proprietor’s private land.

Section 120 of the Bihar Tenancy Act was explained as merely prescribing certain evidentiary rules for deciding whether a disputed piece of land qualifies as the proprietor’s “private” land. The provision does not forbid a proprietor, even if he is unable to demonstrate that he cultivated the land for twelve years before the Act’s commencement, from introducing additional evidence to establish that the land is his private land. The Court relied upon the decisions in 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). It was further observed that the mortgagees were neither proprietors nor tenure-holders as defined by the Bihar Tenancy Act; consequently, persons inducted by the mortgagees could not be regarded as raiyats within the meaning of section 5(3) of the Act and therefore could not acquire any occupancy rights under section 21 of the Act. The precedent set in Mahabir Gope v. Harbans Narain Singh, ([1952] S.C.R. 775) was applied to support this view. The Court also held that the provisions of section 76(a) of the Transfer of Property Act could not be invoked to benefit the mortgagees. Even assuming that the lease granted by the mortgagees persisted after the fixed period expired, such a lease would confer on the lessees no more than a year-to-year tenancy, meaning that their possession would terminate at the end of the agricultural year in which the mortgages were redeemed. The earlier authority in Rajendra Nath v. Dinu Prodhan (A.I.R. 1930 Cal. 738) was expressly disapproved. The decisions in Binod Lal Pakrashi v. Kalu Pramanik, ([1893] I.L.R. 20 Cal. 708) were doubted and held inapplicable, while Pramatha Noth v. Sashi Bhusan (A.I.R. 1937 Cal. 763) was distinguished. The Court further held that section 90 of the Evidence Act does not create any presumption of genuineness in favour of certified copies of documents, nor does it empower a presumption that an agent possessed authority to act on another’s behalf, as referenced in Basant v. Brijraj, ([1935] L.R. 62 I.A. 180). The judgment proceeded under the civil appellate jurisdiction in Civil Appeal No. 107 of 1953, filed by special leave against the decree dated 7 February 1949 of the Patna High Court, which itself arose from original decrees No. 230 and 268 of 1945 and a decree dated 9 August 1945 of the Second Court of the Subordinate Judge at Monghyr in Title Suit No. 40 of 1943. Counsel for the appellants and respondents were noted. The judgment dated 16 January 1956 was delivered by Justice Venkatarama Ayyar. The properties involved were agricultural lands measuring 18 acres 23 cents located in Mauza Chowki, originally owned by Khiran Rai, Firangi Rai and others, and mortgaged usufructuarily on 10 August 1900 to Babunath Prasad and Babu Misri Lal under two sudbharna deeds (Exhibits 2 and 3) for Rs. 1,600. The defendants of the first party were identified as the representatives of these mortgagees.

The Court noted that the defendants of the first party acted as representatives of the mortgagees who held the original mortgages on the agricultural lands. After a monetary decree was issued against the mortgagors, a portion of the property measuring nine acres and six cents was sold on 11 June 1907. That portion was bought by Rameshwar Prasad Singh, who was the undivided uncle of the first plaintiff. Subsequently, on 23 December 1913, the remaining nine acres and seventeen cents were purchased by the first plaintiff directly from the mortgagers. By acquiring the whole extent, the plaintiffs, who were members of a joint Hindu family, became entitled to all the interests that the mortgagers previously possessed in the suit lands. In 1943 the plaintiffs deposited, under section 83 of the Transfer of Property Act, the amounts due under the two mortgage deeds (Exhibits 2 and 3) in the court of the District Munsif at Monghyr. The defendants of the first party then withdrew the deposited sum, thereby effecting the redemption of the mortgages. When the plaintiffs subsequently sought to take actual possession (khas) of the lands, they were opposed by the defendants of the second party, who claimed to have occupancy rights. In response, the plaintiffs instituted the present suit before the Subordinate Judge at Monghyr, seeking recovery of possession of the lands from the second-party defendants.

The plaintiffs asserted that the lands were “kamat khudkast,” meaning they had been in personal enjoyment of Khiran Rai, Firangi Rai and later of the mortgagees and the first-party defendants by virtue of the sudbharna deeds (Exhibits 2 and 3). They contended that the second-party defendants derived purported occupancy rights from a settlement made by the mortgagees, but that such a settlement was not genuine, nor was it binding upon the mortgagers. Alternatively, the plaintiffs claimed damages against the first-party defendants if it were found that the second-party defendants had improperly acquired occupancy rights under that settlement. Both sets of defendants denied that the lands were kamat lands and denied that the first-party defendants had settled the second-party defendants as raiyats. They alleged that the second-party defendants, or their predecessors, had been in possession of the lands even before the mortgages, based on a settlement with the mortgagers, and therefore the plaintiffs were not entitled to possession or damages. The Subordinate Judge held that the lands were private property of the original proprietors, that the second-party defendants or their predecessors had not been inducted into possession by the mortgagers, and that they had only been placed in possession by the mortgagees through a lease deed (Exhibit 2(a) dated 27 May 1905). Consequently, the judge described the second-party defendants as mere creatures of the first party, found the settlement not bona-fide, and granted a decree of ejectment in favour of the plaintiffs. The defendants appealed this judgment to the High Court of Patna, which upheld the Subordinate Judge’s finding that the second-party defendants had been inducted into possession only in 1905 under the lease deed and were not raiyats settled by the mortgagers prior to 1900.

The High Court observed that the defendants of the second party had entered into possession only in 1905 under the lease deed identified as Exhibit 2(a) and that they had not been settled raiyats by the mortgagors before the year 1900. However, the learned Judges of the High Court held that the lands forming the subject of the suit had not been proven to be “sir” or private lands, that the second-party defendants were not merely agents of the first party, that the lease deed, Exhibit 2(a), constituted a bona-fide transaction, and that recognition of the second-party defendants by the mortgagees as tenants conferred occupancy rights upon them. Consequently, the suit was dismissed. The plaintiffs then appealed. It was noted that the plaintiffs had abandoned their alternative claim for damages against the first party, and that the sole relief they now sought was possession of the lands against the second-party defendants. Counsel for the first party, identified only as the counsel for the first party, made no substantive arguments concerning the merits of the dispute between the appellants and the second-party defendants and merely requested that his costs be awarded. The second-party defendants were represented by counsel who vigorously contested the appeal. The principal issue for determination was whether the disputed lands were private lands of the proprietor. Section 120(2) of the Bihar Tenancy Act VIII of 1885 presumes that “land is not a proprietor’s private land, until the contrary is shown.” A cadastral survey undertaken in 1908, followed by a final notification issued under section 103-A of the Act, recorded the lands as being in the possession of the second-party defendants, describing their status as “kaimi” or settled raiyats. Section 103-B(3) provides that every entry in a published record of rights shall be evidence of the matter referred to in such entry and shall be presumed correct until proved otherwise. These provisions together place the burden on the proprietor to establish that the lands are his private lands. Both parties adduced oral evidence regarding the character of the lands, but the evidence was deemed too vague, recent, and self-interested to carry significant weight. Accordingly, the determination rested principally on the documentary evidence. The earliest relevant document was Exhibit 1, a mortgage deed executed by the former owners, Firangi Rai and others, in favor of Harbans Narain Singh on 10 April 1893, covering a portion of the suit lands. The deed recited that the mortgorgors “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 term “khudkasht” denotes personal cultivation, a neutral expression that may encompass both private lands and bakasht (raiyati) lands, that is, lands acquired by surrender, abandonment, or other means. The term “kamat,” however, carries a definite meaning of private lands under section 116 of the Bihar Tenancy Act, a point that became pivotal in the Court’s analysis.

The Court observed that the term “kamat” carries a precise meaning and denotes private lands, as defined in section 116 of the Bihar Tenancy Act. Consequently, if the description in Exhibit 1 is accepted as correct, the lands were, on that date, privately cultivated by the proprietor. Exhibits 2 and 3 are Sudbharna deeds dated 10-8-1900, by which the first-party defendants obtained possession of the suit lands. These deeds contain identical terms and state that the mortgagees were to take possession and occupation of the lands, to “cultivate or cause to be cultivated the same for their self-satisfaction,” and that after the redemption period expired the mortgagors were to pay the mortgage amounts in a lump sum and retake the properties “in our sir and khas possession.” The word “sir” is synonymous with “kamat” and “ziraat” and likewise signifies the proprietor’s private lands, again pursuant to section 116. The Court considered these recitals to be highly significant because they appear in inter-party deeds. Although the respondents argued that these statements could not be treated as admissions by the mortgagees, since the deeds were executed by the mortgagors, the Court held that they are admissible under section 13 of the Evidence Act as assertions of title. Given that the first-party defendants rely on these documents, their probative value against both them and the second-party defendants, who invoke the same documents, is considerable.

Exhibit 1(b) is a simple mortgage executed by Firangi Rai and others on 21-12-1901 in favour of Chhotu Singh, covering certain properties that form part of the suit lands. This instrument also records that the properties are “kamat khudkasht lands.” Finally, the lease deed executed in favour of the first-party by the defendants of the second party, labeled Exhibit 2(a), placed the latter in possession of the lands. That lease states that the lands had been exclusively cultivated by Babu Nath Prasad and Babu Misri Lal, and that the lessees would surrender possession at the end of a two-year term, after which the lessors would be “competent to bring the lands mentioned in this kabuliat under their exclusive cultivation.” Because these documents are ante litem motam, some are inter-party instruments, and they span a considerable period, the Court found them to constitute strong and persuasive evidence that the lands in question are private lands.

The Court noted that the defendants offered no evidence to counter the inference drawn from these documents. Instead, the defendants relied solely on the rebuttable presumptions provided in sections 120(2) and 103-B of the Act to seek a non-suit against the plaintiffs. The Court held that these presumptions have been displaced by the evidence presented in the suit, which is entirely one-sided. Even if the evidence described above were admitted, the respondents contended that it would still be insufficient under section 120 of the Act to establish that the lands were private lands.

In this case the respondents urged that the lands could be declared private only if section 120 of the Act was satisfied, and they quoted the full wording of that provision. Section 120 states: “(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 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 respondents contended that, because the evidence on record only extended back to the year 1893, the requirement of twelve years of continuous cultivation before the enactment of the Act was not met, and therefore the lands could not be held to be private. The Court observed that this contention rested on a misunderstanding of the true scope of section 120. The provision does not forbid the recording of land as private where the twelve-year cultivation evidence is absent; rather, it declares that when such evidence is proved, the land shall be recorded as private. Where that specific evidence is lacking, the provision expressly allows the officer to rely on “any other evidence that may be produced,” provided it is relevant and admissible under the Evidence Act. This interpretation had been adopted earlier in Maharaja Kesho Prasad Singh v. Parmeshri Prasad Singh[1] and affirmed on appeal by the Privy Council in Bindeshwari Prasad Singh v. Maharaja Kesho Prasad Singh[2]. Consequently, the Court held that section 120 merely sets out evidentiary rules for determining whether disputed land is ‘ziraat’. When the facts of paragraph 120(1) are established, a legal presumption in favour of private status arises. However, in the absence of those facts, the status may still be proved by other satisfactory evidence. The remaining issue, therefore, was whether the plaintiffs had adduced sufficient evidence to satisfy the burden imposed by law and to prove that the lands were ‘kamat’ or ‘sir’ lands.

In this case, the Court examined whether the evidence presented by the plaintiffs satisfied the legal burden required to establish that the disputed lands were either “kamat” or “sir” lands. The Court concluded that the evidence was sufficient to support a finding in the affirmative. The respondents heavily relied on Exhibits F-1 and F-1(1), which were khatians for the suit lands dated 7-12-1909 that recorded the lands as being in the possession of the second-party defendants as “kaimi,” and on the presumption created by section 103-B that such an entry is correct. The respondents argued that this presumption was especially strong because the plaintiffs’ predecessors in title had been parties to the earlier proceedings, had contested the same claim, and because the record of rights had been prepared after considering their objections. The plaintiffs, however, denied that they had been parties to those earlier proceedings and contended that the mortgagees and the second-party defendants had acted together behind their backs to defeat their rights.

Exhibits A-1 and A-1(1) were presented as certified copies of objection petitions that the mortgagors allegedly filed under section 103-A of the Act, allegedly signed by a person named Chulai Mahto acting as karpardaz for some of the mortgagors. The plaintiffs challenged the authenticity of the signatures on these exhibits and also questioned Chulai Mahto’s authority to represent the mortgagors. No evidence was offered to prove that the signatures were genuine, yet the defendants sought to invoke the presumption created by section 90 of the Evidence Act in favour of their genuineness. The Court noted that the exhibits were merely certified copies, not the original documents, and cited the decision in Basant v. Brijraj, which held that the presumption under section 90 applies only to original documents, not to copies. Furthermore, the Court observed a further obstacle: the documents were signed by Chulai Mahto as an agent, but there was no proof that he was authorized as an agent, and section 90 does not permit a presumption regarding the existence of such authority. The Court also pointed out that the substantive objection raised in Exhibits A-1 and A-1(1) claimed the lands were bakasht lands held by the mortgagees, a position contrary to the mortgagors’ interests because, if accepted, it would prevent them from admitting tenants and would not grant them the status of settled raiyats and occupancy rights under section 21 of the Act. Only if the lands were classified as private would the proprietor be entitled to cultivate them personally, a claim the mortgagors had consistently asserted since 1893.

The claim set out in Exhibits A-1 and A-1(1) was held to be destructive of the rights that the mortgagors had asserted throughout the proceedings, and it effectively amounted to an admission that the lands in question were not private. This admission raised serious doubt as to whether the petitions had truly been inspired by the mortgagors themselves. It was also noted that, at the hearing of the petition, the mortgagors failed to adduce any evidence, and the decision rendered by the Survey Officer was obtained almost entirely ex parte. The mortgagees, although they were parties to the proceedings, did not appear before the tribunal and did not produce the mortgage deeds identified as Exhibits 2 and 3, documents under which they had taken possession and which described the lands as “sir”. It was in the mortgagees’ interest that the lands be characterised as “sir”, and they also bore the duty to defend the title of the mortgagors against the tenants’ claim that the lands were raiyati. The Court therefore asked why the mortgagees had failed to produce Exhibits 2 and 3 at the hearing. Likewise, the recitals contained in the lease deed, Exhibit 2(a), which had been executed by the defendants of the second party, were inconsistent with the mortgagees’ assertion that the lands were raiyati, yet this document was also not produced at the hearing. On the basis of these omissions, the appellants’ contention that the proceedings evidenced by Exhibits A-1 and A-1(1) were collusive in nature was given considerable weight.

Even assuming, for the sake of argument, that the exhibits were genuine, the Court held that this would not materially affect the ultimate result. The true effect of a record of rights made under section 103-A is not to create rights where none previously existed, but merely to raise a presumption under section 103-B that such rights exist, a presumption that is always open to rebuttal. A long line of authority establishes that a person who attacks a record made under section 103-A discharges the burden placed on him by section 103-B by demonstrating that the record was not justified on the basis of the materials on which it relied. This principle was affirmed in the cases of Bogha Mower v. Ram Lakhan and Eakub Ali v. Muhammad Ali. In the present case, no evidence had been placed before the authorities who made the record; therefore the plaintiff needed only to produce evidence that satisfied the Court that the entry was erroneous. Whether the issue is examined under the presumption created by section 120(2) or that created by section 103-B, the outcome is the same. Plaintiffs who claim that the lands are kamat must establish that claim by clear and satisfactory evidence. The Court found that the evidence adduced by the plaintiffs was indeed sufficient to meet that standard, and consequently the presumption under section 103-B, as well as that under section 120(2), was displaced. In the result, the Court was of the opinion that the lands subject to the suit are the private lands of the proprietor. The respondents also contended that even if the lands were private, that fact would not prevent the tenants from acquiring occupancy rights under Chapter V, because the restriction provided in section 116 would not apply to the present facts.

In this matter, the Court observed that Section 116 of the Transfer of Property Act was not applicable to the facts before it, and therefore no order for ejectment could be granted. Section 116, without unnecessary detail, declares 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 entered into possession of the land pursuant to Exhibit 2(a), which was a lease for a period of two years. Consequently, on the face of that lease they were barred from acquiring occupancy rights by virtue of that demised interest.

The respondents, however, contended that the tenants remained in possession of the holdings even after the two-year term under Exhibit 2(a) had expired, that they continued to pay rent to the mortgagees who acknowledged them as tenants, and that, on this basis, their status could not be described as that of tenants holding under a lease for a term or from year to year. They argued that, because of this continued arrangement, there was no obstacle to the tenants acquiring occupancy rights under Chapter V. The point was not argued whether, since Exhibit 2(a) was an agricultural lease, the tenants who held over after the expiry of the fixed period should be treated as tenants from year to year, a question which would be decided in accordance with the principles set out in Sections 106 and 116 of the Transfer of Property Act.

Proceeding on the basis of the findings of the High Court, the Court noted that the tenants were described as the creatures or servants of the mortgagees and that they had been in continuous possession while paying rent to those mortgagees. On that footing, the Court held that Section 116 did not prevent the tenants from acquiring rights under Chapter V. The remaining issue was whether the tenants actually 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 that is, at the relevant time, held by him as a raiyat in that village. Section 20 defines a settled raiyat as a person who has continuously held land for a period of twelve years in any village. Section 5(2) defines “raiyat” as a person who has acquired a right to cultivate land for himself, his family members, his servants, or his partners. Section 5(3) further 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.” Accordingly, before a person can claim occupancy rights under Section 21, he must first establish that he qualifies as a raiyat under the definitions in Sections 5(2) and 5(3).

The Court concluded that the defendants, who were the second-party respondents, had obtained the right to hold the lands for cultivation from the first-party mortgagees and not directly from the mortgagors. Because they did not hold the land immediately under a proprietor as required by Section 5(3), they could not be deemed raiyats. Consequently, they could not invoke the occupancy right provided in Section 21 and therefore had no claim to occupancy under Chapter V.

The parties argued that, for the purpose of section 21, the tenants should be regarded as raiyats because, under section 58 of the Transfer of Property Act, a mortgage constitutes a transfer of an interest in land, and the mortgagee therefore becomes the owner of that interest and consequently a proprietor within the meaning of section 5(3). Section 3(2) of the Transfer of Property Act defines a proprietor as a person who owns, whether in trust or for his own benefit, an estate or a portion of an estate. While it is true that a mortgagee is the transferee of an interest in immovable property and can, in a loose sense, be described as the owner of that interest, the statutory definition of proprietor requires ownership of the estate or a part thereof, not merely an interest therein. To say that a mortgagee “owns the estate over which he owns an interest” would be contradictory. This point is illustrated by the observation in Ghose on the Law of Mortgage in India, volume I, page 77, which states that “interest which passes to the mortgagee is not the ownership or dominion which, notwithstanding the mortgage, resides in the mortgagor.”

The question of whether a tenant of a mortgagee could be treated as a raiyat for the purposes of section 21, as defined in section 5(3), was previously examined by this Court in Mahabir Gope and others v. Harban Narain Singh and others [1962] S.C.R. 775, 781. In that decision, the Court held that a mortgagee is neither a proprietor nor a tenure-holder, and consequently a tenant introduced by the mortgagee does not satisfy the definition of raiyat contained in the Act. That precedent governs the present dispute. The respondents further contended that mortgagees might be classified as tenure-holders under section 5(3), an argument that is equally untenable. Section 5(1) defines a tenure-holder as a person who has acquired a right to hold land for the purpose of collecting rent or of bringing the land into cultivation by establishing tenants thereon. In the facts of the present case, the lands were being personally cultivated by the mortgagors at the time they were mortgaged, as shown in Exhibits 2 and 3. No raiyats existed on the land at that stage, and there was consequently no question of transferring any right to collect rent from such tenants.

The respondents relied on wording in Exhibits 2 and 3 that allowed the mortgagees to cultivate the lands or cause them to be cultivated at their discretion, arguing that this authorized the creation of tenants. However, that clause would be effective only where the lands needed to be brought fresh into cultivation, a situation that did not arise here. Because the mortgagees are neither proprietors nor tenure-holders as defined by the Act, the tenants who occupy the land under the mortgagees cannot be deemed raiyats within the meaning of sections 5(2) and 5(3). Accordingly, those tenants are unable to acquire occupancy rights under section 21 of the Act. The parties also put forward the contention that mortgagees possessed power under section 76 of the Transfer of Property Act to induct tenants on the land for cultivation purposes, an argument that follows.

In the present dispute, the respondents argued that a transaction relating to cultivation would be binding on the mortgagors and that, as a result, the tenants would acquire the status of raiyats and obtain occupancy rights under section 21 of the Bihar Tenancy Act. To support this contention they relied on the judgments in Manjhil Lal Biswa Nath Sah Deo v. Mahiuddin (1), Rajendra Nath v. Dinu Prodhan (2) and Pramatha Nath v. Sashi Bhu (3). The Court explained that this argument confused two distinct legal concepts that have separate origins and different legal consequences. The general rule is that a person cannot grant another a right that exceeds the right he himself possesses; consequently, a lease created by a usufructuary mortgagee normally ends when the mortgage is redeemed. Section 76(a) of the Transfer of Property Act provides an exception to this rule: if a lease could have been granted by the owner as a matter of prudent management, the lease remains binding on the mortgagors even after redemption, although it cannot operate beyond the period for which it was originally granted. Assuming that the mortgagees possessed the power under section 76(a) to continue the lessees listed in Exhibit 2(a) as tenants after the expiry of the fixed period, that power would at most give the tenants a year-to-year tenancy and would not allow them to remain in possession after the agricultural year in which redemption occurs (see citations (1) [1926] 97 I.C. 852, (2) A.I.R. 1930 Cal. 738, (3) A.I.R. 1987 Cal. 763). Thus, the mortgagee’s authority under section 76(a) to admit tenants in the ordinary course of management does not enable the respondents to claim occupancy rights over the land. Turning to the Bihar Tenancy Act, section 21 grants settled raiyats a permanent right of occupancy only when the conditions specified in that section are satisfied; this right is created by statute and cannot be asserted outside its provisions. As the Court had already noted, a mortgagee is neither a proprietor nor a tenure-holder, and a person settled on the land by the mortgagee does not qualify as a raiyat under sections 5(2) and 5(3). Accordingly, such a person is not entitled to any statutory occupancy right. Therefore, if the respondents cannot resist the ejectment suit on the basis of either section 76(a) of the Transfer of Property Act or section 21 of the Bihar Tenancy Act, it is difficult to conceive how they could obtain a right by combining the two provisions. The Court further observed that in Manjhil Lal Biswa Nath Sah Deo v. Mahiuddin (1), the suit was filed by a mortgagor after redemption to recover possession of lands that had been leased by the mortgagee.

In the case under consideration, the proprietor asserted that the lands in dispute were classified as zirait, but the court found them to be raiyat lands. The court further observed that the mortgagee had inducted tenants into possession of those lands in the ordinary course of managing the property. Consequently, the judgment held that the tenants could not be lawfully ejected from the possession they had obtained. The decision was expressly based on the finding that the lands were raiyati lands, and the learned judges distinguished it from the rulings in Mahadeo Prasad Sahu v. Gajadhar Prasad Sahu and Jogeshwar Mazumdar v. Abed Mahomed Sirkar because those earlier cases involved zerait lands. That earlier decision does not support the broad proposition advanced by the respondents and, in fact, runs counter to their argument since the present mortgage concerns kamat lands. In the separate case of Rajendra Nath v. Dinu Prodhan, the facts were similar to those in Manjhil Lal Biswa Nath Sah Deo v. Mahiuddin, except that the lands involved did not appear to be raiyati lands. Justice Guha, while holding that the mortgagor was not entitled to possession, observed that the mortgage deed did not bar the settlement of tenants by the mortgagee. He further noted that once settled, those tenants possessed well-defined rights under the Bihar Tenancy Act and therefore could not be lawfully ejected. Section 5(3) of the Act would not apply in these circumstances because it requires the letting to be made by the proprietor or the tenure-holder. The judgment did not identify any other statutory provision that could confer occupancy rights on a tenant in such a situation. The learned judge then referred to the decision in Binad Lal Pakrashi v. Kalu Pramanik as the principle upon which the case should be decided. In that precedent, a tenant was placed in possession by a person who claimed to be the proprietor, and although that person later turned out not to be the proprietor, the court held that the letting conferred raiyat status on the tenant. Subsequent authorities such as Peary Mohun Mondal v. Radhika Mohun Hazra and Krishna Nath Chakrabarty v. Mahomed Wafiz explained that the word “proprietor” in section 5(3) was intended to include both de facto and de jure proprietors, thereby granting raiyat status to a bona-fide tenant inducted by either. That line of reasoning challenges the general principle that no one can confer a right superior to the one he himself possesses, and later cases have tended to limit its application to narrow circumstances. Nevertheless, even on its own terms, the principle cannot apply where the individual admitting the tenant is a mortgagee rather than a proprietor as required by section 5(3). Accordingly, the court concluded that the authority established in Binad Lal Pakrashi v. Kalu Pramanik does not support the proposition that a tenant admitted by a mortgagee acquires raiyat status.

In Rajendra Nath v. Dinu Prodhan (5) the Court held that a tenant who is admitted into possession by a mortgagee acquires the status of a raiyat. The decision was reported in (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 and (5) A.I.R. 1930 Cal. 738. In the earlier case of Pramtha Nath v. Sashi Bhusan (1) a permanent lease was granted by a mortgagee after the mortgagee had obtained a decree of foreclosure. That decree was later set aside in a suit filed by the Official Receiver, who represented one of the mortgagors, and a fresh decree of redemption was issued. After the redemption the Official Receiver received rent from the lessee and treated the lessee as a tenant of the land. Subsequently a transferee, who had acquired the rights of the Official Receiver, instituted an ejectment suit against the tenant. The Court held that the tenant had acquired a right of occupancy under section 21 of the Act and therefore relief for khas possession could not be granted against him. While some observations in that judgment were widely expressed, the essential ground of the decision was that the Acceptance of rent by the Official Receiver amounted to an affirmation of the lease, thereby bringing section 5(3) of the Act into operation and conferring on the tenant the status of a raiyat. The decisions cited above do not establish a principle that a lease executed by a mortgagee, even though protected by section 76(a) of the Transfer of Property Act, by itself creates a right of occupancy for the tenant under section 21 of the Act. Respondents argued, relying on the clauses in Exhibits 2 and 3, that the mortgagee possessed the power to have the lands cultivated. They contended that this clause gave the mortgagee authority to settle raiyats on the lands, and that tenants admitted under that authority would stand in the same position as if they had been admitted by the proprietor, thus satisfying the conditions of section 5(3). However, the lands in question are private lands, and the clause is followed by a provision stating that on redemption the mortgagors are entitled to resume “sir and khas possession.” Interpreting the deed as authorising mortgagees to settle tenants with the status of raiyats would render that redemption provision ineffective. The authority to have lands cultivated can only mean obtaining cultivation through hired labour, as the definition of “private lands” contemplates, and is supported by the case reported in A.I.R. 1937 Cal. 763. Accordingly, the Court is of the opinion that the mortgage deed did not confer any authority on the mortgagees to admit tenants in a manner that would grant them a right of occupancy. In the result, the Court found that the defendants of the second party had failed to establish any right of occupancy over the suit lands, and consequently the plaintiffs were entitled to a decree of ejectment together with an award of future mesne profits.

The Court noted that the relief the plaintiff sought was exactly the relief set out in the plaint, and therefore it allowed the appeal. It set aside the decree that had been passed by the lower court and reinstated the decree originally issued by the Subordinate Judge of Monghyr, so that that decree would again be operative against the second group of defendants. The reinstated decree was accompanied by an order that the entire cost of the litigation be awarded against those second defendants. Regarding the claim that had been made against the first group of defendants, the Court dismissed that portion of the suit. In view of the particular circumstances surrounding the dismissal of the claim against the first defendants, the Court decided that no order as to costs would be made in respect of that part of the proceedings.