JUDGMENT
Ashwini Kumar Sinha, J.
1. Whether the settlement by virtue of Kabuliat (Exhibit 2), executed by one Ayodhya Mandal in favour of Raja Krityanand Singh Bahadur and others (of Banaili), dated 29-6-1934, was for agricultural purposes is the cardinal question for decision in the instant appeal.
2. The learned Counsel for the defendants-appellants has contended that on true interpretation of Paragraphs 3 and 7 of the aforesaid Kabuliat, it is apparent that the settlement was not for agricultural purposes and the lease was governed by the provisions of Transfer of Property Act and not by the Bihar Tenancy Act, whereas, the learned Counsel for the plaintiff-respondents has submitted that on a harmonious interpretation of the aforesaid two paragraphs, it is apparent that the settlement was for agricultural purposes and the lease was governed by the Bihar Tenancy Act and not by the Transfer of Property Act.
3. In order to appreciate the respective submissions of the learned Counsel for the parties, a few facts need to be stated.
This appeal is by the defendants against a judgment of affirmance. Interpreting the relevant paragraphs of the Kabuliat (Exhibit 2). both the courts below have concurrently held that the settlement was for agricultural purposes and, in that view of the matter, it was the provision of the Bihar Tenancy Act which applied in the case and not that of the Transfer of Property Act.
Admittedly, the disputed land was a Ditch-Garirajanus Khas under Raj Banaili. The plaintiffs case was that they took settlement of the disputed land in the name of Vadhya Mandal from Raj Banaili and a registered Kabuliat was accordingly executed on 29-6-1934 in proof of the settlement and the plaintiffs, after settlement, filled up the Ditch and began to cultivate It after levelling the same. The plaintiffs case further was that they all along paid rent to Raj Benaili and also deposited rent in favour of the Raj under Section 61 of the Bihar Tenancy Act and that after the vesting of the estate, they were paying rent to the Government. The plaintiffs claim that they were all along coming in possession of the suit land since the date of their settlement and that they being settled Raiyat of the village acquired a right of occupancy in the suit land. The plaintiffs further case was that some criminal case cropped up and the defenants, in cllusion with the malas of the Raj, also brought into existence a Kabuliat dated 15-4-1940 in respect of the land in suit which was all collusive and fraudulent and defendants never acquired any right to the suit land on the basis of the said Kabuliat and that the rent receipts granted to them by the males of the Raj were neither legal nor valid. The plaintiffs further alleged that the report of the Deputy Collector, and Reforms, on a petitioner filed by the defendants, was against the actual state of affairs.
This necessitated filing of the suit by the plaintiffs for declaration of title and confirmation of possession or in the alternative for recovery of possession in respect of 1 Bigha 1 katha and 5 Dhurs of land appertaining to plot No. 14, under Khata No. 76, situate in Mauza Amari, in the district of Monghyr, as detailed in the plaint.
4. The suit was contested by defendant No. 3, Girija Nandan (whose heirs and legal representatives are the appellants in the instant appeal). The defence was that Ayodhya Mandal had taken settlement of the suit land for a few years only for slocking water for irrigation purposes but neither Ayodhya Mandal nor his heirs had any right over the land in suit nor they ever filled up the Ditch or made it fit for cultivation, as alleged. The further case of the defence was that the term of the Kabuliat in question expired in Bhado 1347 Fs. and thereafter the Raj took Khas posssesion of the same. It was further stated in defence that the Raj, through its lawyer, sent, a notice on 4-1-1940 to Ayodhya Mandal cancelling his settlement and thereafter the Raj settled the disputed land with defendant No. 3, who executed a registered Kabuliat in favour of Raj on 15-4-40 and since the date of settlement the contesting defendant was coming in possession of the same after making the land fit for cultivation. The deposit of rent under Section 61 of the Bihar Tenancy Act was denied by the contesting defendant.
The main defence was that the settlement of the suit land with the plaintiffs was for a few years only and that also only for the purpose of stocking water and not for cultivation purpose and that the plaintiffs lost all the right in the disputed land after the expiry of the terms of the lease and that the contesting defendant has been coming in continuous possession of the suit land since the execution of the Kabuliat by him on 15-4-40.
5. The trial Court on interpretation of the relevant clauses of the Kabuliat (Exhibit 2) in question, held that the right to cultivate was also created in favour of the plaintiffs, in case the land became fit for cultivation. The trial court held that the provisions of Bihar Tenancy Act applied in the instant case and not the provisions of the Transfer of Property Act. The trial court further held, on admission of the defence evidence itself, that the plaintiffs were the settled Raiyats of the village and that the plaintiffs being the settled Raiyats of the village acquired right of occupancy over the disputed land and they could not be evicted from the land in question, except under the provisions of the Bihar Tenancy Act.
The trial court further held that the plaintiffs had subsisting title over the suit land and the defendants had failed to prove their title by settlements or by adverse possession.
6. With these findings the trial court decreed the suit and confirmed the possession of the plaintiffs over the suit land and permanently restrained the detentants from interfering with the plaintiff’s possession over the suit land.
7. The defendants, aggrieved by the judgment and decree of the trial Court, preferred an appeal. The court of appeal below agreed with all the findings of the trial court and dismissed the defendants appeal.
Hence the present appeal by the defendants.
8. I have already mentioned the cardinal point to be decided in the present appeal, as referred to in paragraph 1 above.
In order to decide the point in question, it is most pertinent to quote the two relevant paragraphs of the Kabuliat (Exhibit 2) in question, i.e. paragraphs 3 and 7 of the Kabuliat (Exhibit 2).
3. I, the executant, do hereby declare that I have taken settlement of the said land by virtue of the said Kabuliat for storing water for the purpose of irrigating my jot lands. There is no other nami and Benami co-sharer of me. The executant, I, the executant, shall be liable to pay sixteen annas rent from my persons and property. If, in future, it is, found that save and except me, the executant, any other person is settlement holder of the lands specified below by virtue of this Kabuliat, the proprietors zamindars of the Banali Estate shall be competent to dispossess me, the executant from the land under settlement. 1, the executant shall not be competent to put forward any kind of objection. If I do so the same shall be deemed to be null and void and it will not be maintainable in the court. As the said land is a ditch, and I have taken the said land only for storing water for irrigation purpose, therefore, if at any time the said land becomes fully fit for cultivation I, the executant or my heirs and representatives in interest cultivate the said land and grow cr6ps thereon and then in that case I the executant and my heirs and representatives in Interest shall pay the rent of the said land at a just rate fixed by the Manager of the day.
7. I, the executant, declare that I have taken the aforesaid land in settlement only for storing water for the purpose of irrigating my jot land and I, the executant, have got no other right save and except store in water thereon. I, the executant shall not otherwise use the aforesaid land or a portion thereof nor shall I plant any tree or orchard (on the land), nor shall I put bandh or get a pond executed without the written consent of the malik zamindars. If I do so, the settlement will be cancelled and the aforesaid malik zamindars shall be competent to take khas (exclusive) possession of the land or settle it with some other person and besides it, I the executant, shall be liable to pay damages to them.
(Lines have been underlined by me for emphasis).
9. On a perusal of payment made in paragraphs 3, as quoted above, it is apparent that the settlement was for storing water for irrigational purposes. It has further been stated that if in future the land becomes fit for cultivation the executant or his heirs will cultivate and grow crops over it and they would be liable to pay rent. Thus, in my opinion, the right to cultivate was also created in favour of the plaintiffs in case the land became fit for cultivation.
Similarly, in paragraph 7 of the Kabuliat, as quoted above, it is apparent that the settlement of the land in question for storing water was for the purpose of irrigating the executant’s jot land. This also shows that the settlement was for agricultural purposes.
The aforesaid two relevant clauses do not show that the settlement was for rearing fish in the Ditch.
10. The learned Counsel for the defendant appellants, on his own interpretation of the aforesaid clauses, contended that the land was not taken for cultivation purposes but was taken for storing water only and, in that view of the matter, learned Counsel submitted that it was the provisions of the Transfer of Property Act which governed the lease and not the provisions of Bihar Tenancy Act, I am afraid, the interpretion given by the learned Counsel for the defendant-appellants cannot be accepted. The learned Counsel for the defendant appellants, in order to support his submission omits words and lines after the words “for storing wherever it occurs either in paragraph 3 or in paragraph 7 of the Kabuliat, and emphasises only the words “for storing water.” But, to give a harmonious construction, the clauses must be read as a whole.
11. The learned Counsel for the defendant-appellants, in support of his submission relied upon the the case as Sobharam Mahto v. Raja Mahton and Ors. . I am afraid, the facts of that case were absolutely different and the authority relied upon does not help the defendant appellants at all. As the fact were different from the facts of the instant case, the reasonings, mentioned therein cannot be applied in the instant case. In the case relied upon by the learned Counsel for the defendant–appellants, it would appear that what was settled was the tank in plot No. 513 and its embankment on plot no. 514, but the purpose for which tank was settied not specifically mentioned in the document. The lease, therefore, did not show whether it was granted for agricultural purposes or not, It only mentioned that the settled could remove the mud of the said tank and remain in possession it on payment of rent fixed in the lesse. From the document, therefore, the purpose, of the lease could not be ascertained.
Thus, in my opinion, the decision relied upon does not support the contention of the learned Counsel for the defendant-appellants.
(The lines have been underlined by me for emphasis).
12. On the other hand, the learned Counsel for the plaintiff respondents have relied upon the decision in the case of Shordamani Devi v. State of Bihar and Ors. . and has submitted that the relevant clause of the Kabuliat (Exhibit 2), as quoted above, indicate that the learned was for agricultaral purposes and, hence, it was the provision of the B.T. Act which was applicable in the instant case and not the provisions of B.T. Act. In this decision the case of Subharam Mahto v. Rap Mahton and Ors. (supra), relied upon by the defendant-appellants was noticed distinguished and on a closer scrutiny of the legal aspects of the matter it was held that if a portion of the demised area is used for agricultural purposes, that will determine the character of the lease as a whole.
13. I have already held above that the right to cultivate the demised area was also created in favour of the plaintiffs, if the land became fit for cultivation. Both the courts below have concurrently held that the plaintiffs began to cultivate the land in question and grow crops over it. The defendants, in their written statement, admitted possession of the plaintiffs over the land in question at least till the month of Bhadeo 1947. Fs but on a very proper appraisal of the oral and documentary evidences on record, both the courts below have concurrently found that the plaintiffs were never dispossessed and were all along in possession of the land in question form the date of the settlement.
14. The subsequent conduct of the plaintiffs in cultivating the land was also an important factor to be considered for answering the point involved.
15. In a very careful perusal of the two relevant clauses of Kabuliat (Exhibit 2) (quoted above) and for the aforesaid reasonings, I hold that the lease was for agricultural purposes and thus was the primary object of the lease and hence, the provisions of this Transfer or Property Act were not applicable in the present case, rather, it was the provision of the Bihar Tenancy Act which applied in the instant case. I further hold that the two courts below have correctly held that the plaintiffs were the settled Raiyats of the village and acquired right of occupancy over the land in question from the time they began to cultivate and grow crops over It and they could not be evicted from the land except under the provisions of the Bihar Tenancy Act.
16. In the result, the appeal fails and is dismissed. However, there will be no order as to costs.
S.S. Sandhawalia, C.J.
17. I agree.