JUDGMENT
1. This second appeal by the plaintiff arises out of a suit for declaration of title and recovery of possession in respect of plot No. 321, a tank and No. 320 embankment of the tank of khata No. 118 in village Terga in the district of Dhanbad.
2. The case of the appellant briefly stated is that he took raiyati settlement of the tank and its embankment from the zamindar of Nowagarh by a sata Hukumnama dited the 9th January, 1948 on payment of salami of Rs. 700- and annual rent of Rs. 8/- besides cess. He came in possession of the property in dispute since the date of settlement by cutting earth, rearing and catching fish and by irrigating his fields from the water of the tank. He also paid rent to the landlord and obtained rent receipts. He continued in possession up to the year 1957 but in 1958 defendant No. 1 the State of Bihar through the Circle Officer, Baghmara dispossessed the appellant by settling the tank with one Mangan Modak. On the expiry of the term of the settlement of Mangan Modak defendant No. 1 settled the tank with other persons as well on temporary basis. According to the appellant as his landlord defendant No. 2 was not in possession of the property in dispute on the date of vesting it could not vest in defendant No. 1 under the Bihar Land Reforms Act.
3. The main defence of defendant No. 1 was that the property in dispute vested in it on and from 14th November, 1951. The appellant had not taken any raiyati settlement of the property in dispute on 9th of January, 1948 as alleged by him. It was only a got-up story to lend colour to his title. The claim of the appellant that he was in possession till 1957 was also challenged.
4. Both the courts below have dismissed the suit of the appellant. The trial court held that the appellant failed to prove his case of subsisting title to the land in dispute. It also held that the settlement with the appellant being for non-agricultural purpose he did not acquire the status of raiyat; therefore, whatever right he had in the property it vested in defendant No. 1, The lower appellate Court has held that the sada Hukumnama (Ext. 6) cannot be used to form the basis of settlement in respect of the property covered by it for want of registration. After considering the oral and other documentary evidence on the record it has further held that the appellant failed to prove that he was in possession over the tank by utilising its water for irrigation of any of his neighbouring land and that the dominant purpose of the settlement of the tank and its embankment was for rearing and catching fish, which was non-agricultural purpose and, therefore, the appellant was not a raiyat and his right vested in defendant No. 1 under the Bihar Land Reforms Act.
5. Mr. R.S. Chatterji appearing for the appellant has advanced three arguments in support of his appeal.
(i) The sada Hukumnama (Ext. 6) was admissible in evidence under Section 53-A of the Transfer of Property Act as well as for proving the nature and character of the appellant’s possession over the disputed property;
(ii) the settlement was a raiyati settlement and, therefore, the property settled with the appellant by the said sada Hukumnama did not vest in defendant No. 1 under the Bihar Land Reforms Act; and
(iii) even if the appellant had no title to the land he could not be dispossessed without an enquiry under Section 4 (h) of the Bihar Land Reforms Act and his dispossession being illegal he was entitled to recovery of possession.
6. It has not been and cannot be disputed that Ext. 6 being a sada document is not admissible in evidence to prove the title of the appellant over the disputed land. The appellant being the plaintiff is also
not entitled to use it under Section 53-A of the Transfer of Property Act. It is well settled that Section 53-A is available only as a defence and cannot be invoked for enforcing rights under an unregistered lease. It has been so held by the Supreme Court in Delhi Motor Co. v. U.A. Basrurkar, AIR 1968 SC 794. Learned counsel for the appellant, however has placed reliance on a decision of the Allahabad High Court in Ram Chander v. Maharaj Kunwar, AIR 1939 All 611. In that case the plaintiff was allowed to use the registered lease which was defective and did not comply with the requirement of Section 107 of the Transfer of Property Act in support of his claim. The suit was brought before the plaintiff was completely dispossessed. It was brought when only a portion of his house had been demolished. He claimed a relief of perpetual injunction restraining the defendant from demolishing the house or otherwise interfering with his right as lessee. In the circumstances the Allahabad High Court held that the plaintiff of that suit was virtually in the position of a defendant and, therefore, he could use his defective lease under Section 53-A of the Transfer of Property Act. This case was noticed by their Lordships of the Supreme Court in Delhi Motor Company’s case AIR 1968 SC 794. They did not consider it necessary to decide whether the said decision of the Allahabad High Court Was correct or not but observed
“that decision may be justified, if at all, on the basis that though the lessee in that case was a plaintiff, he was actually seeking protection under Section 53-A of the Transfer of Property Act by being in the real position of a defendant.”
In the case before us the plaintiff-appellant cannot be said to be in the position of a defendant. He did not come to Court at the time when there was an attempt to dispossess him. According to his own case defendant No. 1 had settled the property in dispute with several persons one after the other. He now seeks declaration of title to the property in dispute and recovery of possession. Therefore, the ratio decidendi of Ram Chander’s case AIR 1939 All 611 even if it be assumed that the case has been decided correctly is of no help to the appellant. In our opinion, therefore the appellant cannot use the unregistered Hukumnama (Ext. 6) under Section 53-A of the Transfer of Property Act in support of his title. Of course, it can be looked into to show the nature and character of possession of the appellant as held in the Full Bench decision of this Court in Mossomat Ugni v. Chowa Mahto. AIR 1968 Pat 302. It has to be remembered however, that nature and character of possession is different from nature and character of title.
7. In support of his contention that the settlement with the appellant was a raiyati settlement Mr. Chatterji mainly relied on the use of expression “raiyati” in the sada Hukumnama (Ext. 6). The sada Hukumnama does not describe what was the purpose for which the settlement was being made but as observed earlier in his plaint itself the appellant has stated that he came in possession of the property in dispute by cutting earth, rearing and catching fish and by irrigating his field from the water of the tank. He does not claim in his pleadings that he came in possession of the disputed property by cultivating it. Therefore, he cannot now urge that he was in possession of the disputed property by cultivating it. So far as his case that he was in possession of the disputed property by irrigating his fields from the water of the tank is concerned that has been disbelieved by the lower Appellate Court, the final court of fact. As found by that Court the appellant was in possession of the disputed property only by rearing and catching fish in the tank, That finding is based on the consideration of the entire evidence on the record and in our opinion it is a finding of fact which cannot be challenged at the second appellate stage in view of the own pleadings of the appellants. Mr. Chatterji has attempted to challenge that finding on the ground that the sada Hukumnama describes the settlement as raiyati and in the two rent receipts issued by the ex-landlord to the appellant the land is mentioned as jote. Mr. Chatterji himself has cited a decision of the Calcutta High Court in Syed Nawab Ali Choudhary v. Hemanta Kumari Debi, (1904) 8 Cal WN 117. In this case it has been held that the expression “Jote” does not necessarily mean a cultivating jote or holding. Therefore, the finding of the lower Appellate Court as to the nature of possession of appellant cannot be challenged on the ground that it has wrongly interpreted the rent receipts. The Hukumnama, being unrecistered(?) could be used as a document of title. It was to be considered by the lower Appellate Court merely as a piece of evidence on the question of nature and character of possession along with other evidence and its aforesaid finding cannot be set aside on the Ground that the Hukumnama at place uses the expression “raiyati” in it. In our opinion there is no legal error in the finding of the lower Appellate Court as to the nature and character of appellant’s possession and the purpose for which he took settlement and that it was not a raiyati settlement and we in a second appeal cannot interfere with that finding.
8. Coming now to the last point which has been urged by Mr. Chatterji as to enquiry under Section 4 (h) of the Bihar Land Reforms Act we find that there is no merit in it either. If the settlement with the appellant was not raiyati it was not saved under the Bihar Land Reforms Act and the lands settled with the appellant vested in defendant No. 1 under Section 4 (a) of that Act. In Bhole Mian v. Shri S.M. Islam, 1957 BLJR 689 = (AIR 1958 Pat 48) it has been held by a Bench of this Court that Section 4 (b) of the Bihar Land Reforms Act applies only to such transfers which are not encumbrances within the meaning of Section 4 (a). In Dwarka Gorhi v. State of Bihar, 1964 BLJR 66 a Bench of this Court has also held that the settlement of the right of fishery is mere encumbrance within the meaning of Section 4 (a) of the said Act and the provision of Section 4 (h) does not apply in such a case. Mr. Chatterji has placed strong reliance on the decision of the Supreme Court in Smt. Maheshwari Devi v. State of Bihar, AIR 1970 SC 796. As it appears from the facts of that case the settlement in that case was of 57.90 acres of land comprising of several plots including a big tank and its embankment. It was not a case of settlement of only a tank and its embankment. Difference between a case where merely a tank and its embankment are settled and a case where a large area is settled for the purpose of cultivation with a tank thereon has been fully discussed by a Bench of this Court in Sobharam Mahton v. Raja Mahton, AIR 1957 Pat 278. While the settlement of lands with a tank thereon is a case of raiyati settlement, settlement of mere tank and its embankment is not necessarily a raiyati settlement. In our opinion, therefore the decision of the Supreme Court referred to above is of no help to the appellant. Mr. Chatterji also placed reliance on another decision of the Supreme Court in Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620. In that case their Lordships of the Supreme Court have referred to certain observations made in cases of Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 114, Brigadier K.K. Verma v. Union of India, AIR 1954 Bom 358 and Yar Moham-mad v. Lakshmi Das, AIR 1959 All 1 and approved them. The observations in the decisions of Bombay High Court and Allahabad High Court were made with reference to Section 9 of the Specific Relief Act and there cannot be any dispute with the proposition that a tenant who has ceased to be a tenant may bring a suit under Section 9 of the Specific Relief Act for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law. The observation of the Privy Council in Midnapur Zamindari Company’s case, which has been approved by the Supreme Court is as follows:
“In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.”
This observation of their Lordships of the Judicial Committee and approval thereof by the Supreme Court in Lallu Yeshwant Singh’s case, AIR 1968 SC 620 cannot be interpreted to have laid down the law that where a person with no title is dispossessed otherwise than in due course of law by a person with title he can obtain recovery of possession even though the suit is not one under Section 9 of the Specific Relief Act. It is obvious from the observation of the Allahabad High Court in Yar Mohammad’s case, AIR 1959 All 1 (FB) that restoration of possession in such a suit, that is, a suit under Section 9 of the Specific Relief Act is, however, always subject to a regular title suit and the person who has the real title and better title cannot, therefore, be prejudiced in any way by a decree in such a suit. This observation was also approved by the Supreme Court in Lallu Yeshwant Singh’s case, AIR 1968 SC 620. The present suit by the appellant is not one under Section 9 of the Specific Relief Act and in our opinion there is no merit in the contention of Mr. Chatterji that the suit must succeed because the appellant was dispossessed without any enquiry under Section 4 (h) of the Bihar Land Reforms Act. On the findings recorded by the courts below the right that the appellant acquired under the settlement was nothing but an encumbrance and it did vest in defendant No. 1 under Section 4 (a) of the Bihar Land Reforms Act. Therefore, as held in two Bench decisions of this Court, already referred to above, no enquiry under Section 4 (h) of the Bihar Land Reforms Act was necessary.
9. In the result the appeal fails and is dismissed with costs.
