JUDGMENT
Shambhu Prasad Singh, J.
1. This second appeal by defendant No. 1 is directed against concurrent judgments and decrees of the courts below decreeing the suit of the plaintiff for declaration of raiyati right and recovery of possession over Plot Nos. 104, 457 and 473 measuring 2.49 acres in village Chowrah in the district of Hazaribagh.
2. Admittedly this village once upon a time belonged to Serampur Gaddi and in order to appreciate respective cases of the parties it is necessary to state the facts including the history of succession to the Gaddi in somewhat details. Dubraj Singh had three sons, Pratap Narain, Ajit and Bharat. Ajit died issuless. The estate was governed by law of primogeniture. On the death of Dubraj, Pratap Narain succeeded to the Gaddi. A, khorposh was created in favour of Bharat (on the materials on the record it is not possible to say whether by Dubraj himself or by Pratap Narain) of several villages of the estate including village Chowrah. On the death of Pratap Narain his son Garur Narain succeeded to the Gaddi. He died in the year 1879 and was succeeded by his son Sharda Narain. Bharat also died in the year 1879. He had two sons, Nilkanth Narain and Hari Prasad. It is also not possible to say on the materials on the record whether the khorposh estate was treated as impartible and was inherited in its entirety by Nilkanth Narain or it was inherited by both the brothers, but it is admitted that village Chowrah came to be possessed by Nilkanth Narain. On 9th of September, 1890 Nilkanth Narain made two subordinate khorposhes in favour of his wife Hridaya Kumari and his brother Hari Prasad in respect of some bakast lands of village Chowrah. There was some dispute between the parties as to the nature of the khorposh grant in favour of Hridaya Kumari. According to the appellant it was a heritable grant According to the plaintiff respondent No. 1 it was a grant for life only. The Courts below have found it to be a grant for life only. The document, Ext. A (2) by which the grant was created has also been placed before us and it clearly shows that the grant was one for life only. In that view of the matter, it has been conceded by learned counsel for the appellant that the aforesaid finding of the courts below is correct.
3. Sharda Narain died on 16th of April, 1907. On his death a dispute arose between Nilkanth Narain and Jagdamba Kumari, widow of Sharda Narain as to the succession to the Gaddi. His suit was decreed by the trial Court. During the pendency of the appeal in the High Court Nilkant Narain died and his son Wazir Narain was substituted in his place. The matter also went to the Privy Council. Ultimately it was held that Nilkanth Narain was entitled to succeed to the Gaddi, but properties acquired by Sharda Narain were to go to his Widow. On 17th of June, 1931 Hridaya Kumari gave the properties in dispute in rehan to Durga and Nanhu. On 6th of April, 1935, Ramgarh Estate auction purchased Serampur Gaddi at a court sale in auction of a mortgage decree. On 30th of September, 1935, Hridaya Kumari gave in rehan 8.61 acres of land including the disputed hinds to Khagpat Ram and his brother. Wazir Narain also joined this document as an executant. Khagpat and his brother redeemed the rehan of Durga and Nanhu. In February, 1936 Ramgarh Estate obtained delivery of possession. Hridaya Kumari died on 15th of October, 1939, Wazir Narain died in 1940 leaving behind two sons Bisambhar and Baidyanath as his heirs and legal representatives. In the year 1944 Baidyanath executed a registered confirmatory patta (Ext. A) recognising the appellant as raiyat on naqdi rental in respect of the suit lands. In 1946 the proprietor of Ramgarh Estate instituted Title Suit No. 11 of 1946 against Khagpat and others for possession of the properties mortgaged to him. The two sons of Wazir Narain were not made parties to that suit. The suit was decreed ex parte on 3rd of March, 1947. On 5th of May, 1947 proprietor of Ramgarh Estate sold Serampur Gaddi to Prajapalak, a relation of his. On 12th of May, 1948, Prajapalak settled the lands in dispute with the plaintiff who is daughter-in-law of Khagpat. In 1949 Prajapalak obtained delivery of possession through court of the lands which were subject-matter in Title Suit No. 11 of 1946.
4. Relevant part of the case of the plaintiff-respondent which is necessary to be stated for the purposes of this appeal is that by virtue of the aforesaid settlement dated 12th of May, 1948 she has got a valid title to the suit lands. According to her the khorposh right possessed by Nilkanth Narain merged with the parent estate after Nilkanth Narain succeeded to the Gaddi. She claimed to be in possession of the suit lands on the basis of the settlement in her favour until she was dispossessed by the appellant after an order dated 9th of September, 1959, in a proceeding under Section 145 of the Code of Criminal Procedure. Because of the adverse order in the proceeding and consequential dispossession she had to institute the suit on 3rd of June, 1961.
4-A. The defence of the appellant was that khorposh right of Nilkanth Narain did not merge with the parent estate of Scrampur Gaddi on the devolution of the Gaddi to him. A couple of years before 1916 the ancestors of the appellant had obtained settlement of the disputed lands on fixed produce rent from Nilkanth Narain. Produce rent was also realised of the disputed lands by Durga and Nanhu after the lands were mortgaged to them. In 1943 sons of Wazir Narain redeemed the rehan bond in favour of Khagpat and thereafter Baidyanath made the confirmatory settlement in the year 1944 with the appellant. His further case is that the plaintiff respondent never came in possession of the suit lands rather he has been in possession thereof.
5. Some of the findings recorded by the courts below which are relevant for the decision of the present appeal are as follows:–
(1) There was merger of the khorposh interest of Nilkanth Narain in village Chowrah with the parent estate.
(2) The khorposh interest therefore was also acquired by Prajapalak and the plaintiff respondent acquired good title by settlement in her favour dated 12th of May, 1948.
(3) Ext. A was a colourable transaction and the appellant did not acquire any title on the basis thereof specially when Baidyanath had no title left in the properties on the date of the settlement.
(4) There was no settlement on fixed produce rent as claimed by the appellant nor his ancestors or he were in possession. Rather the plaintiff respondent was in possession from the date of settlement in her favour till she was dispossessed as alleged by her.
6. Mr. Jagdish Chandra Sinha appearing on behalf of the appellant has contended that the courts below have wrongly held that there was merger of the khorposh interest of Nilkanth Narain with the parent estate after it devolved upon him. He has submitted that the courts below have failed to take into consideration the fact that the khorposh in favour of Bharat was created before 1882, the year the Transfer of Property Act was enacted and hence by virtue of provisions of Section 2 (c) of the Act there could be no merger as contemplated by Section 111 (d) of the Act. According to learned counsel when Nilkanth Narain succeeded to Serampur Gaddi in the year 1907 he did not come in possession of the estate at once. He had to fight a litigation which went upto Privy Council and in the circumstances, he could not have intended to merge his personal khorposh interest with superior interest in the parent estate which was subject-matter of the litigation. Learned counsel has, therefore, urged that the court of appeal below has wrongly found that there was merger on the basis that there was only one khewat in the name of Nilkanth and no separate khewat in respect of subordinate khorposh interest and ignoring settlements and mortgages created by Wazir Narain as irrelevant on that ground. In my opinion, learned counsel for the appellant is not correct in submitting that the finding of the courts below that there was merger of the two interests is wrong. Learned counsel has placed strong reliance on the decision of the Judicial Committee in Someshwari Prasad v. Maheshwari Prasad, AIR 1936 PC 332 and has submitted that the court of appeal below has not correctly appreciated the rule laid down in this decision. It will not be fair to the Court of appeal below to say that it has not correctly appreciated the decision of the Judicial Committee in the aforesaid case. It has referred to that decision and quoted the passage on which learned counsel for the appellant has placed reliance before us and thereafter proceeded to discuss the evidence in the case on the question of merger. It is well settled that merger is a question of intention and decision of the question whether when a lesser interest vests in a person who holds greater interest, merger has taken place or not, depends upon the intention of the person who holds both the interests. Their Lordships of the Judicial Committee have pointed out that this intention may be express, it may be implied or in cases where the party is incapable of expressing his intention the court has to consider what is beneficial to him. In the case before their Lordships the interest in two villages was held not to have merged. The interest in those two villages was acquired after Ran Bahadur the holder had been adjudged a lunatic. In such a case obviously no intention could be expressed or implied. It was a case of considering what was beneficial to the holder as he was incapable of expressing his intention. In the circumstances, their Lordships held that the interest in those two villages did not merge in the superior interest which was also held by Ran Bahadur. So far as the third village which was acquired when Ran Bahadur had not been adjudged a lunatic, they held that intention of Ran Bahadur for the merger must be implied. In the instant case, Nilkanth Narain was not adjudged a lunatic. He was not a person who was incapable of expressing his intention. Therefore, it is not a case where the existence of intention of merger could be found on the basis of what was beneficial to Nilkanth Narain. Here the question whether there was or was not a merger express or implied, has to be determined on the evidence on the record. Of course, there is no material on the record on the basis of which it can be said that Nilkanth Narain expressed that his intention was to merge the two interests. But on the materials on the record the learned court of appeal below has held that such an intention is implied. It has mainly relied on the fact that after Nilkanth Narain succeeded to the Gaddi of Serampur and the suit was decreed in his favour by the trial court, in the survey operations which followed he did not get a separate khewat for the subordinate interest of khorposh rights recorded in his name. The inferences drawn by the court of appeal below from this fact cannot be said to be not justified. Merely because an appeal against the decree and the judgment of the trial court was pending at the time of the survey operation, it cannot be said that by omitting to get a separate khewat recorded in his name for the subordinate khorposh interest intention for merger on the part of Nilkanth Narain cannot be implied. It has been submitted by learned counsel for the appellant that entry in survey record of rights is not a document of title and, therefore, on the basis of the khewat alone the court of appeal below should not have drawn such an inference. True, it is, that survey records of rights are not documents of title, but they are admissible in evidence and inference from them can be drawn one away or the other. Further the finding of the court of appeal below as to merger is not based only on the absence of a khewat in respect of the khorposh interest in the name of Nilkanth Narain but it is also based on the facts that after taking delivery of possession the proprietor of Ramgarh Estate got proclaimed under Section 15 of the Chota Nagpur Tenancy Act to the tenants of village Chowrah under khewat No. 2 of Hirdaya Kumari that after her death he had resumed the village and the tenants were liable to pay rent to him, that some of the tenants did not pay rent to him and he instituted suits against several tenants of the village impleading the two sons of Wazir Narain since dead as defendants to them and that they contested the suits. They did not raise any plea that they were khorposhdars of the village and it was held in the suit (vide Ext. 20) that the khorposh right had merged in the superior rights of the holder of the Gaddi. In the circumstances, I do not find it possible to hold that the finding of the court of appeal below on the question of merger of the two interests is wrong either on fact or in law.
7. Learned counsel for the appellant has also placed reliance on a decision of the Calcutta High Court in Chandra Singh v. Sarat Chandra, AIR 1938 Cal 128 wherein it has been held that where tenures are created before the passing of the Transfer of Property Act, the acquisition of such tenures by holder of inferior right cannot merge them in the superior right according to the common law of this country as it was before the Transfer of Property Act was passed, and, therefore, Section 111 (d) of that Act cannot be applied to such tenures and on a decision of the Judicial Committee in Dulhin Lachhanbati Kumari v. Bodh Nath, AIR 1922 PC 94 wherein it has been observed that merger is not a thing which occurs ipso jure upon the acquisition of what may be called the superior with the inferior right.
8. Learned counsel for plaintiff respondent has not challenged the proposition of law laid down in the aforesaid two decisions, but he has submitted that Section 111 (d) of the Transfer of Properly Act does not in terms apply to a case where the tenancy was created prior to the passing of the Transfer of Property Act, but the general law of merger undoubtedly applied and, therefore, in cases where the two interests are co-extensive and vest in the snme person in the same right, prima facie there would be merger unless it is proved that the intention of the holder was to keep the two interests separate. Tn support of this contention he has placed reliance on a decision of the Calcutta High Court in Joy Gopal Singha v. Uday Chand Mahatab, AIR 1944 Cal 282 B. K. Mukherjea, J., as he then was, was presiding over the Bench, which delivered the judgment. In my opinion, therefore the fact that the khorposh grant in favour of Bharat was created prior to the coming into force of the Transfer of Property Act will not make any differance if it is found that there are materials on the record to show that there was implied intention on the part of Nilkanth Narain for the merger of the two interests after the” superior interest also vested in him. Further as found by the court of appeal below the appellant has got no title because there was no settlement with his ancestors in fixed produce rent before 1916, there was no redemption of the rehan in favour of Khagpat and his brother by the sons of Wazir Narain and the deed of confirmatory settlement of the year 1944 was a colourable transaction. Therefore, the plaintiff respondent who has got title as found by the courts below is entitled to get back possession from the appellant who is a mere trespasser. Even if the plaintiff respondent had no title, she was entitled to get back possession from the appellant who is a mere trespasser on the basis of her possessory title. The suit in favour of the plaintiff respondent, therefore, has rightly been decreed by the two courts below.
9. In the result I find no merit in the appeal and it is accordingly dismissed with costs. A. N. Mukharji, J. 10. I agree.