JUDGMENT
Macpherson, J.
1. The suit out of which suit appeal has arisen was instituted by the appellant an 1926 in respect of 117 1/2 bighas of land in his digwari mauza of Cause which are covered by a raiyati khata of the Records-of-Rights finally published in 1924 showing the land as a sthitiban (sevited raiyat) raiyati tenancy of the defendants respondents and with six of the plots as also ariat. Ariat is a variety of korkar as defined in the Chota Nagpur Tenancy Act, 1908.
2. The lands in contest fall into three classes (1) an area of 21 bighas shown in Behedaie ka, (2) an area of 79 bighas shown in Schedule kha along with the lands of ka, the aggregate being 100 bighas, and (3) a bandh or tank of about 17 bighas, named the Ranioandh.
3. The plaintiff sought recovery of possession of the first two items, his claim being that the area of 21 bighas of Schedule ka was settled with defendants’ father by registered kabuliyat in 1891 at a jama of Rs. 18 but was purchased by the landlord in execution of a decree for rent by the landlord who received dakhaldehani in 1903 and was in possession the 1915 when he was dispossessed by the defendants’ who further in 1924, after a suit of 1917 for recovery of possession of the 21 bighas had been withdrawn in the High Court, dispossessed him of the other lands in Schedule kha. He asserted possession of the Ranibandh and claimed confirmation thereof or in the alternative recovery of possession.
4. The defence was that the defendants had been in possession from 1273 B.S. (1866) of the land which is their Mutrahir Chak, the north west portion in jalsasan and the rest in nayabadi right by virtue of two sanads of that year under which they have always paid rent bi Rs. 4-4 0 and Rs. 12-8-0 respectively. They denied the alleged kabuliyat of 1891 and pleaded ignorance of a bale of 1903 in execution of a rent decree.
5. The Munsif dismissed the suit and his decision was affirmed in appeal.
6. The lower Appellate Court found that the sanads and rent receipts of the defendants as well as the kabuliyat and delivery of possession of the plaintiff are genuine, that the defence story of possession since 1866 by virtue of the sanads is true and that the plaintiff’s allegations (1) of dispossession of the areas of 21 bighas and 79 bighas and (4) of present possession of the Ranibandh are false. He held that the area of 79 bighas was in fact claimed by plaintiff for the first time during settlement operations. As regards the 21 bighas, he held that though a delivery of possession was made to the dig war in 1903, the defendants nevertheless continued in peaceful possession and in fact paid the rent not at the kabuliyat jama of Rs. 18 but at the sanad rate, and that neither the kabuliyat of 1298 B.S. nor the delivery of possession in 1903 was ever given effect to.
7. In the lower Appellate Court an objection was taken on behalf of the appellants which was not, raised at the trial or even in the memorandum of appeal and which the learned Subordinate Judge negatives both on that, account and on the merits. It was that Chanch being a digwari mauza, no right of occupancy could accrue in lands of the tenure.
8. In second appeal Mr Jayaswal practically confines himself to (1) the general proposition that a raiyat cannot acquire a right of occupancy in a digwari village and (2) the contention that in any event no such right has in fact accrued in the 21 bighas of Schedule ka.
9. Having regard to the fact that the plaintiff sought to recover on entirely different allegations so that, as observed by the learned Subordinate Judge, “the attention of the parties was not directed to this question and no evidence has been adduced on the point” and that he has against him the Record of Rights at the preparation of which the point was also not taken, the plaintiff manifestly could not succeed in second appeal on the first contention, at least without a remand which is not suggested by Mr. Jayaswal and which it would be unreasonable to accord even at the appellant’s expense.
10. But the submission that the accrual of a light of occupancy is inconsistent with the nature of a tenancy, ghatwali or digwari, burdened with Police services and, therefore, with an incident of such a tenure which is covered by Section 77, may be examined. In support of it Mr. Jayaswal relies on the decision in Mita Dusadh v. Anup Mahto 103 Ind. Cas. 287 : 7 Pat. 566 : A.I.R. 1928 Pat. 603. To that decision I was a party. But apart from the fact that the decision is on appeal to the Privy Council, that case is clearly distinguishable since the tenancy of a road chaukidar in the Patna District which was there in contest was found to be of the nature of a raiyati holding, whereas the plaintiff’s digwari tenancy of Mauza Chanch is admittedly a tenure. And indeed in Mita Dusadh v. Anup Mahto 103 Ind. Cas. 287 : 7 Pat. 566 : A.I.R. 1928 Pat. 603 it is observed, A custom, usage or customary right that occupancy rights can arise in such tenancies would not be inconsistent with the provisions of the Bengal Tenancy Act and in fact a local custom or usage in that regard is found in certain ghatwali tenures in this province especially in Chota Nagpur, that is to say, in real tenures as opposed to holdings of a ghatwali character.”
11. Again in that instance to in this there had been a Record of Rights but whereas in that case the description of the undertenant was “shikmi” in this case he is shown as a settled raiyat (so that he has a right of occupancy in his holding), and in some plots even as holding the higher ariat tenancy in respect of which Section 67 of the Chota Nagpur Tenancy Act, 1808, gives statutory affirmance to the custom of a right of occupancy, while others of the tenants in the mauza have also been recorded as raiyats possessing a right of occupancy. Thus in that instance the Record of Rights was in favour of the holder of the service tenancy, in this instance it is entirely against him. The mere existence of a general legal proposition that non-accrual of a right of occupancy is an inherent incident in a ghatwali tenancy, would not rebut the statutory presumption that the Record of Rights is correct until the contrary is proved by evidence, any more than the general proposition that a landlord is entitled to all land within his estate would rebut an entry that a certain raiyat possesses a right of occupancy in his holding. Least of all would it do so in Chota Nagpur, where it is common knowledge, 83 observed in the case cited, that in such tenancies a local custom or usage exists that a right of occupancy can accrue even as regards agricultural land settled with a new raiyat, and much more so where the land is korkar. In the case of korkar, ex hypothesi, the land when settled (or occupied under a local custom making the landlord’s, consent unnecessary) was worth nothing or very little and the service tenure stood improved in value to all succeeding incumbents for all time by the costly reclamation effected by tie raiyat which would manifestly never have been undertaken unless there was to accrue forthwith a right of occupancy. In this particular “I would express my concurrence with the views expressed by Dhavle, J. in Digambar Singh v. Lengra Manjhi, 8. A. Nos. 1185 87 of 1930 (Unreported). Thus the entry in the Record of Rights must be assumed to have been made with full knowledge of the general proposition, and it is upon the plaintiff to show that no local custom or usage or other circumstances exist which would overbear that proposition since such existence must be taken to be implied in the entry. The plaintiff adduced no evidence in this regard. He did not even make the claim thereby exhibiting the consciousness that it is untenable. The onus upon him was particularly heavy in view of the statements in the Final Report of the Survey and Settlement operations in which the Record of Rights was prepared. Paragraph 71 opens as follows:
Customary rights–All over the District, it is admitted that occupancy rights accure by custom at once in all land settled on cash rent.
while at para 191 in discussing the occupancy rights of raiyats the Settlement Officer states:
The question whether rotate holding lands under ghatwals were debarred from obtaining occupancy rights was never seriously debated in the course of the present operations.
As set out by the Settlement Officer, the affirmative view has been held in the eighties by Sir Herbert Rieley and Mr. Hewitt, the Commissioner of Chota Nagpur, who held that both under Act X of 1859, which was in force till 1909 and by the custom of the District occupancy rights accrue in such a case. The same view was given effect to in Mr. (now Sir) James Sifson’s Settlement of Barahabhum and Patkum, which preceded the District operations. The criterion is whether the settlements were made bona fide or with an ulterior object to reduce permanently the value of the tenure.
12. Thus apart from the history of this particular litigation, it is manifest that on the merits also the appellant has completely failed to rebut the entry in the Record of Rights which could only be done by establishing that the assumed incident of the digwari tenure was not affected by a local custom or usage under which the entry in the record can be correct. On these findings the appeal is without merits so far as the area of 79 bighas and the Ranibandh are concerned.
13. So far as the area of 21 bighas is concerned, the appellant’s further contention is that he is entitled to succeed on the findings of fact.
14. His point is that on those findings a new settlement of this area must be considered to have been made in 1930 since which year no right of occupancy can have accrued therein because until December, 1909, the District was governed by Act X of 1859, under which occupation for twelve years as a raiyat was necessary for the accrual of a right of occupancy, while from 1909, when the Chota Nagpur Tenancy Act, 1908, replaced Act X of 1859, p. 77, which enacts that nothing in the Act shall affect any incident of a ghatwali or other service tenure or holding, effectively prevents accrual of such a right thereafter. It is urged that even if an occupancy right in the 79 bighas and the Ranibandh accrued under Act X of 1859 which would not cease on the introduction of Section 77 of the Act of 1908, yet, in respect of the 21 bighas, the decision in Lal Singh Bhumij v. Kristo Khutya 84 Ind. Cas. 383 : 6 P.L.T. 534 which, it is pointed out, is in pari materia with the present case, abundantly supports the present contention.
15. If there was a new settlement in 1903, the decision cited supports the contention. But there is a definite finding of fact that there was in 1903 no new tenancy and that:
the defendants and their father have been in possession of all the lands in suit as tenants since 1273.
I am not prepared to hold that when the original tenancy was completely reinstated forthwith and the effect of the legal proceedings ignored by both parties as has been found, the legal effect was, in the circumstances of the case a new tenancy. On this the second plea also must fail.
16. But further I am constrained to express serious doubt as to the correctness of the decision cited. It rests on rulings relating to Bengal tenancies which are far from being in pari materia with those of Chota Nagpur while in none of them had there been in a Record of Rights an entry adverse to the tenure holder’s claim. These rulings have been critically examined by Dhavle, J. in the decision cited. There the aspect of the problem which was in controversy was the accrual of an occupancy right in korkar land, several plots of which, as has been indicated are included in the 21 bighas now in controversy, and it was rightly found that the decisions do not govern that point. And the criticism may be extended to all raiyati lands, especially in cases where there has been a Record of Rights. There the real point for decision must always be whether the entry in the Record of Rights has been rebutted. It will, as set put above, not be rebutted merely on proof of the existence of a general incident of a digwari tenancy (if such there be) that occupancy rights cannot accrue; it must further be established that there is no local custom under which the existing entry that the raiyat has an occupancy right in the holding, could be correctly made. Though the Statute cannot affect such an incident, the custom may have done so all along. That it has done so is the inference also to be drawn from paras. 72 and 91 of the Settlement Report quoted which was not before the Judges who decided Lal Singh Bhumij v. Kristo Khutya 84 Ind. Cas. 383 : 6 P.L.T. 534. Like Dhavle J., both members of this Division Bench nave had much experience of Chota Nagpur and of the District of Manbhum in particular and prior to the decision mentioned had never even heard of a claim that the admitted custom all over the district that “occupancy rights accrue by custom at once in all land settled on cash rent” did not apply to estates and tenures burdened with service of a Police character (provided that the settlement was made bona fide by the holder of such estate or tenure), a claim not even seriously advanced against the raiyats in the course of the Settlement operations, or of a claim that in ghatwali or digwari tenures the custom, universal elsewhere in the Division, of instant accural of occupancy right, in favour of a reclaimer of land, did not obtain. In my judgment even on the assumption of a new settlement in 1903, the respondents had a right of occupancy in the 21 bighas from that date under the local custom and that too without requiring to rely upon any statutory right of occupancy conferred by the provisions of Act X of 1859 or by custom in respect of the ariat. For this reason also the second plea fails.
17. The appeal being without merits, I would dismiss it with costs.
Scroope, J.
18. I agree.