Anand Rai Vs. Srimati Sita Devi and ors. - Court Judgment

Excerpt:
village chaukidari act, 1870-section 3-post of chaukidar is not hereditary- no error in impugned order. bihar land reforms act, 1950-section 6-proviso-decree for recovery of possession of suit land declaring defendant-appellant as a trespasser- plaintiff-respondent and his predecessor-in-interest acquired occupancy right over land by virtue of proviso to section 6-land shown as chaukidari jagir mann land-grand father of plaintiff-respondent remained in possession of land even after vesting of estate-plaintiff-respondent is entitled to possession of land recorded as chaukidari jagir mann land in record of right and accrued to plaintiff and his predecessor-in-interest by virtue of proviso to section 6 of act-appeal dismissed. - constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. m.y. eqbal, j.1. this appeal by the defendant-appellant is against the judgment of reversal.2. the plaintiff-respondent filed title suit no. 08 of 1977 for a declaration that the post of chaukidar is hereditary and that the order dated 6.10.1969 passed by the sub divisional officer, jamtara appointing ratan rai as chaukidar is illegal and not binding on the plaintiff. the plaintiff further sought a relief for a decree of recovery of possession of the suit land which is in possession of the defendant allegedly as a trespasser.3. the facts of the case lie in a narrow compass:the plaintiff's case is that his father bihari rai was the chaukidar of village saluka, p.s. nala in the district of jamtara and was in possession of jote no. 63 as chaukidari jagir land. bihari rai worked as jagir holder chaukidar of village saluka for a long time. subsequently he became physically unfit and, therefore, allowed his brother ratan rai to worl as chaukidar in his place because his son (plaintiff) was minor. after attaining majority, the plaintiff filed petition on 9.12.1968 before the s.d.o., jamtara for appointment as chaukidar in place of his father bihari rai. his petition was ultimately rejected by the s.d.o. by order dated 6.10.1959. the plaintiff filed appeal before the deputy commissioner, dumka and revision before the commissioner, but the order of s.d.o. was affirmed. plaintiff's case is that the post of chaukidar is hereditary and, therefore, he should have been appointed as chaukidar in place of his father. the plaintiff's further case is that ratan rai had no right to possess the land of jot no. 63 which stands recorded in the name of bihari rai as chaukidari jagir man land. 4. the defendant-appellant contested the suit by filing written statement the case of the defendant-appellant is that when bihari rai, father of the plaintiff, became physically unfit to render the services as chaukidar, he was duly appointed as chaukidar of village saluka by s.d.o., jamtara by order dated 6.10.1969 passed in chaukidari saha no. 35 of 1969. defendant's case is that ratan rai came in possession of the land after his appointment as chaukidar. according to the defendant, the post of chaukidar is not hereditary and the plaintiff cannot claim any right to the post of chaukidar. the defendant has also prayed that his possession of the suit land cannot be said to be that of trespasser because he is performing the duty of chaukidar.5. the trial court framed several issues and recorded findings on all the issues against the plaintiff. the trial court firstly held that the post of chaukidar is not hereditary. the trial court further held that possession of the defendant-appellant over the suit land is not as a trespasser. consequently, the suit was dismissed.6. aggrieved by the said judgment and decree of the trial court, the plaintiff preferred title appeal no. 40 of 1986. the appellate court affirmed the finding recorded by the trial court and held that the post of chaukidar is not hereditary. however, on the issue of nature of possession of the defendant no. 1 over the suit land, the appellate court reversed the finding of the trial court and held that possession of the defendant-appellant over the suit land is as a trespasser. consequently, the appellate court decreed the suit in part and held that the plaintiff is entitled to gel recovery of possession of the suit land. hence, this appeal.7. the appeal was admitted for hearing on the following substantial questions of law:(1) whether the court of appeal below has committed error of law in reversing the finding of the trial court without appreciating the correct proposition of law?(2) whether the chhowkidari jagir lands can be resumed when the office of the chowkidar is terminated or withdrawn?8. i have heard mr. rajeeva sharma, learned senior counsel appearing for the appellant and, mr. kaushik sarkhel, learned counsel appearing for the respondents.9. the admitted facts are that the plaintiff's grandfather bihari rai was the chaukidar and he was holding the land which was recorded in the last settlement jamabandi no. 63 in the name of bihari rai and land was shown as chaukidari jagir maan land. however, said bihari rai subsequently became physically unable to perform the duties of chaukidar and in his place, ratan rai worked as chaukidar. the plaintiff after attaining majority filed a petition for his appointment in place of his father bihari rai and the said petition was rejected.10. so far the nature of post of chaukidar is concerned, both the courts have recorded concurrent finding that the post of chaukidar is not hereditary. i do not find any error in the said finding. the only question that needs consideration is as to whether the plaintiff is entitled to a decree for recovery of possession.11. admittedly, when the grandfather of the plaintiff-respondent was chaukidar, he was holding the land which was recorded in his name in the last settlement jamabandi no. 63 prepared in the year 1929-34. he continued possession of the land recorded in his name even after the vesting of the estate under the bihar land reforms act in lieu of performance of duty as chaukidar and a jamabandi was created in the name of grandfather of the plaintiff-respondent. it was only in the year 1968, bihari rai became physically unfit and, therefore, his brother ratan rai was allowed to work as chaukidar.12. section 6 of bihar land reforms act, 1950 lays down the provisions with regard to the lands which are not vested. section 6 reads as under:6. certain other lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights. - (1) on and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting, including.--(a) (i) proprietor's private land let out under a lease for a term of years or under a lease, from year to year, referred to in section 116 of the bihar tenancy act, 1885, (8 of 1885),(ii) landlords, privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less; referred to in section 43 of the chota nagpur tenancy act, 1908 (ben. act 6 of 1908).(b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and(c) lands used for agricultural or horticultural purposes forming the subject-matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof;shall, subject to the provisions of sections 7a and 7b be deemed to be settled by the state with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the state having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may he determined by the collector in the prescribed manner.provided that nothing contained in this sub-section shall entitle an intermediary to retain possession of any naukarana land or any land recorded as chaukidari chakran or goraitijagir or mafigoraitn in the record of right has already accrued to a raiyat before the date of vesting.explanation, -- for the purposes of this sub-section, 'naukarana land means land as a grant burdened with service in lieu of rent or held simply in lieu of wages for services to be rendered.(2) if the claim of an intermediary as to khas possession over the lands referred to in sub-section (1) or as to the extent of such lands is disputed by any person prior to the determination of rent of such lands under the said sub-section the collector shall, on application, make such inquiry into the matter as he deems fit and pass such order as may appear to be just and proper.provided that the collector in making such inquiry shall give due weight to the circumstances under which the are in which such lands were situated was declared to be a disturbed area under the police act 1861, after the first day of november, 1946.13. from reading the aforesaid provision, it is clear that according to this section, all lands used for agricultural and horticultural purposes which were in khas possession of an intermediary on the date of such vesting, including proprietor's private lands let out in a lease for a term of years or under a lease from year to year referred to in section 116 of the bihar tenancy act, 1885, landlord's privileged lands let out under a registered lease for a term exceeding one year or under a lease, or oral for a period of one year or less, referred to in section 43 of the chotanagpur tenancy act, 1908, lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of a estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour and lands used for agricultural or horticultural purposes forming the subject matter of a substituting mortgage on the redemption of which the intermediary was entitled to recover khas possession thereof would be deemed to be settled by the state with such intermediary and he would be entitled to retain possession thereof and hold them as a raiyat under the state having occupancy rights in respect of such lands.14. however, the first proviso to section 6 provides an exemption under which the intermediary shall not be entitled to retain possession of any land recorded as chaukidari chakran or goraiti jagir or mafigoraiti in the record-of-right or any other land in respect of which occupancy right has already accrued to a raiyat before the date of vesting.15. the explanation to the proviso clarifies that naukarana land means land as a grant burdened with service in lieu of rent or held simply in lieu of wages for services to be rendered.16. in the instant case, the court of appeal below has recorded a finding of fact that bihari rai, father of the original plaintiff and grandfather of the present respondent was recorded with regard to the land in question in the record of right and the nature of the land has been shown as chaukidari jagir mann land. it is, therefore, evidently clear that the grandfather of the plaintiff remained in possession of the land from 1934 to 1969 i.e. even after the vesting of the estate under bihar land reforms act it can, therefore, be safely concluded that the plaintiff-respondent and his predecessor-in-interest have acquired occupancy right over the said land in view of the proviso to section 6 of the said act. admittedly, the land in question which is choukidari jagir land duly recorded in the name of the grandfather of the plaintiff did not vest at the time of vesting of jamindari under bihar land reforms act and he was in possession of the land and thereby acquired occupancy right over the said land. in my considered opinion, therefore, the plaintiff-respondent is entitled to possession of the land recorded as chaukidari jagir maan land in the record of right and a right accrued to the plaintiff and his predecessor-in-interest by virtue of proviso to section 6 of the act.17. in the light of the discussions made herein above, the question of law framed in this appeal is answered accordingly.in the result, there is no merit in this appeal which is, accordingly, dismissed.