Posted On by &filed under High Court, Patna High Court.


Patna High Court
Sarda Devi vs Ram Lochan Bhagat And Ors. on 8 April, 1926
Equivalent citations: 97 Ind Cas 210
Author: K Sahay
Bench: Adami, K Sahay


JUDGMENT

Kulwant Sahay, J.

1. This is an appeal by the judgment-debtor. The respondents in execution of a money-decree, obtained by them against the appellant, sought to attach and sell the 4-annas brahmottar interest of the appellant in Mouzah Sadhuadih.

2. It appears that 62 bighas of land comprised within the 4-annas brahmottar interest is under the direct cultivation of the brahmottardar and the decree-holder wanted to attach and sell her right, title and interest in this 62 bighas of land also. The judgment-debtor objected to the attachment and sale of her brahmottar interest and of her interest in the 62 bighas of land on the ground that her brahmottar interest was not saleable, nor was her interest in the 62 bighas which was raiyati interest. The learned Subordinate Judge allowed the objection and held that the interest of the judgment-debtor in the properties sought to be attached and sold was not saleable. On appeal; the learned District Judge disallowed the objection and has held that the interest of the judgment-debtor is saleable. The judgment-debtor has come up in second appeal against the decision of the District Judge.

2. As regards the 4-annas brahmottar interest the objection of the judgment-debtor arises under the following circumstances:

The village Sadhuadih is comprised within the Handwe estate which is a ghatwali estate and is inalienable. The brahmottar interest in the 16-annas of village Sadhuadih was granted by the proprietors of the Handwe estate, and the objection of the judgment-debtor is that the Handwe estate being inalienable on account of its being a ghatwali estate, the brahmottar interest created by the ghatwal in village Sadhuadih was likewise inalienable.

3. The learned District Judge has pointed out that the interest created1 by the ghatwal by the brahmottar grant is a resum-able interest but it is an interest which is not protected from sale or alienation like a ghatwali estate. A brahmottar interest is not burdened with any services as a ghatwali estate is, and although the interest created by the brahmottar grant was liable to resumption under certain circumstances, such interest could be sold in execution of the decree.

4. In my opinion the decision of the learned District Judge on this point is correct. The brahmottar interest cannot be held to be inalienable because the ghatwal who created the brahmottar right had no power to alienate his own estate. So long as the interest created under the brahmottar grant is in existence, such interest is liable to be attached and sold in execution of a decree. against the brahmottardar.

5. Mr. Naresh Chandra Sinha, appearing on behalf of the judgment-debtor-appellant does not press the point as regards the brahmottar interest with any seriousness. He, however, seriously objects to the attachment and sale of the 62 bighas of land included in the 4-annas brahmottar interest of the judgment-debtor. He contends that this 62 bighas is a raiyati interest and under this San that Regulation III of 1872, a raiyati interest is not saleable, and, therefore, the 62 bighas of land comprised within the 4-annas brahmottar under the direct cultivation of the brahmottardar, is also not saleable.

6. The learned District Judge has come to the conclusion that the interest of the judgment-debtor in the 62 bighas is not the interest of a raiyati but she is in possession of the 62 bighas in her capacity as brahmottardar or tenure-holder.

7. In my opinion, the view taken by the learned District Judge appears to be sound. The Record of Eights which is conclusive under Regulation III of 1872 shows that the 62 bighas is in possession of the judgment debtor as brahmottardar; the entry in the Record of Rights is “bakasht brahmottardar.” This evidently means that although the land might have been raiyati land at one time, by some means or other it has come into the possession of the brahmottardar and that the brahmottardar is in direct cultivation of the 62 bighas in the capacity of a brahmottardar and not as a raiyat. Section 27 of Regulation III of 187:2 prohibits the transfer by a raiyat of his right in his holding or any portion thereof by sale, gift, mortgage or otherwise; it does not prohibit the landlord from transferring his or her interest in a raiyati holding if the landlord by some means or other comes into possession of such holding. No doubt the possession of the landlord is the possession of the land as raiyati land and not as zerait or proprietor’s private land, but so long as the proprietor remains in possession of this raiyati land, the interest which he has in such raiyati land to remain in possession is liable to transfer and sale. The learned District Judge was careful to point out that what will be sold was the right, title and interest of the judgment-debtor in the 4-annas brahmottar interest and in the 62 bighas of land held by her in the capacity of a brahmottardar.

8. The view taken by the learned District Judge appears to be correct and must be affirmed. This appeal is dismissed with coats.

Adami, J.

9. I agree.


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

89 queries in 0.173 seconds.