BHAIRODAYAL SAHU Vs. JAGESHWAR SAHU

JUDGEMENT

(1.) This appeal is by the plaintiffs in a suit to recover possession of some bakasht lands in village Agra, police station Tamar, District Ranchi. The history of the land is that the owners, defendants 3 to 6, have given the plaintiffs a zarpeshgi lease or mortgage with possession of their sixteen annas interest in this and other villages for a consideration of Rs. 21,000 by a registered deed dated 5 September 1930. The previous history of the land as ascertained by the Courts below from the entries in the Record of Rights and the admitted facts is that this was bakasht land of the landlords and had been granted by them to Rajib Rai who had served them faithfully as a dewan. On the death of Rajib Rai, the tenure passed to his brdther Digambar Rai who hypothecated the land in suit by a patta dated 6 December 1927, in the name of defendant 1.

(2.) Thereafter the revisional Record of Rights began to be prepared and at the khanapuri stage Digambar was alive and was entered as a tenure-holder with defendants 1 and 2 as zarpeshgidars under him. While attestation was pending, Digambar died and the landlords resumed his tenure for lack of heirs. There was a dispute regarding the lands now in suit. They were entered as bakasht lands but the possession of defendants 1 and 2 was recorded. The Record of Rights was finally published on 21 July 1930. Then comes the zarpeshgi in favour of the plaintiffs on 5 September 1930, and in 1933 there was some dispute regarding possession in Criminal Courts. The finding of the Criminal Courts was that defendants 1 and 2 were in possession. The plaintiffs in their pleading ignored Rajib, Digambar and Digambar's transfer to defendants 1 and 2 and pleaded that they had obtained actual possession of the disputed land from which they were dispossessed in 1933 after the criminal proceedings. This and the entry in the Record of Rights are propounded as the cause of action for the suit.

(3.) The Munsif held on the basis of the settlement records that the tenure of Rajib and Digambar had been resumed on the death of the latter but that defendants 1 and 2 had continued in possession. On that finding it is argued that the suit ought clearly to have been decreed having regard to Section 14, Chota Nagpur Tenancy Act, which describes the consequences of the resumption of a resumable tenure. All rights or interests created without the consent or permission of the grantors by the grantee on the tenure shall be deemed to be annulled subject to exceptions with which we are not concerned. In appeal the Judicial Commissioner appears to have been inclined to think that the defendants had no title to continue in possession of the land after the death of Digambar, the lands having been resumed and encumbrances annulled under Section 14. But he did not come to a finding on this question being of opinion that it did not arise in the present suit as the landlord was not suing the defendants and was not a party to this suit. Here the learned Judicial Commissioner fell into an error of record. It was true that the landlords were not plaintiffs, but they had been impleaded as defendants 3 to 6 and the suit was properly constituted. Even if they had not been impleaded, the plaintiffs as the persons to whom they had transferred the right to present possession could equally well enforce that right by a suit just as much as the landlords themselves could enforce it. Therefore if the tenancy was resumed, the plaintiffs had a right to reenter on the disputed land and the contesting defendants had no title to resist them.