P L D 1967 Dacca 139 (PLP)

This appeal is by the plaintiffs, who instituted a suit for establishment of their Karsha tenure in the suit land and for recovery of khas possession thereof. Plaintiffs' case is that originally the land belonged to one Prahlad Bhunjamali in Karsha tenancy, which is recorded as chakran land in the settlement records. It was a service‑tenure and the service consisted of sweeping the floor with a broom. The said Karsha, namely, the service‑tenure, was inherited by his son called Satish. The plaintiffs are purchasers from Satish. Plaintiffs further allege that Prahlad gave barga settlement of the land to one Bhadra Atbar for half the produce thereof. The defendant is a son of Bhadra Atbar and he claims title by inheritance to the kol‑karsha tenure held by his father. Defendant denies that his father had obtained a barga‑settle ment from Prahlad or Satish and, furthermore, it has been contended that plaintiffs' title based on a kabuliyat alleged to have been executed by defendant, marked as Exh. 2 in this case, is fictitious because at the time when the said kabuliyat is alleged to have been executed, plaintiffs' father was of unsound mind. On behalf of the plaintiffs some evidence was led, but defendants produced a mass of documents, namely, the C. S. records which have recorded them as having the kol‑karsha interest in the suit‑land. There is also a mention of the word `barga', which is rather peculiar in its context. The trial Court, however, came to a finding that the alleged kabuliyat, namely, Exh. 2, which is said to have been executed by defendant's father, was not genuine because the learned Munsif, who tried the suit, came to a finding that Bhadra Atbar, defendant's father, was of unsound mind at the time when the kabuliyat is said to have been executed. On an appraisal of the evidence, learned Munsif dismissed the suit. Plaintiffs, thereafter, preferred an appeal which was heard and disposed of by the District Judge of Bakarganj. The learned District Judge also considered the Exhibits as well as the evi dence in this case and affirmed‑ the findings arrived at by the learned Munsif and dismissed the appeal. Hence this appeal by the plaintiffs. At the hearing of this appeal, learned Advocate for the appellants took me through the judgments pronounced by the Courts below as well as certain documentary evidence. His contention is that the appeal preferred by the appellants was not disposed of by the learned District Judge in accordance with law. His main grievance is that the learned District Judge failed to notice two documents produced on behalf of the plaintiffs, namely, Exhs. 3 and 3 (a). Exh. 3 is a document appertaining to Revisional Settlement, which records the land in the name of the plaintiffs showing that the plaintiffs possess the same in karsha right. Exh. 3(a) shows the same and, furthermore, that defendants had possessed the land on the basis of half produce. The grievance, which is made on behalf of the appellants, is that if these documents, which are later documents than those produced by the defendants, had been considered by the learned District Judge, then they would have established that the predecessors of the plaintiffs being holders of a service‑tenure, namely, Chakran, could not have transferred the same by creating a tenancy in favour of the defendant's predecessors. It is true that under section 181 of the Bengal Tenancy Act, a Chakran being a service‑tenure could not be transferred unless it was established that there had been an occupancy right acquired by the predecessors of the plaintiffs. Learned Advocate for the appellants maintained that, if a Chakran could not be transferred, the only possible settlement could have been that of a barga settlement. The word `barga' occurring in the settlement records would point to a barga settlement in respect of the words "kol -karsha". It was further contended that if Exh. 3(a) was considered, it would have led to the conclusion that the possession and interest of the defendants were merely those of bargadars. I do not think that this argument can help the present appellants, who are transferees of the last Chakran‑tenure holder, namely, Satish. If a Chakran (service‑tenure) could not be transferred, and this appears to be the legal position, then the plaintiffs acquired no A title to the suit‑land because they themselves claimed to be transferees from Satish, the last holder of the Chakran‑tenure. On the aforesaid point Mr. Akhtaruddin Ahmed, who appeared fox the appellants, has referred to the provisions of section 28 of the East Bengal State Acquisition and Tenancy Act, 1950. The relevant portion reads thus: "In preparing or revising a record‑of‑rights under this Chapter, the Revenue‑officer shall fix, in respect of every land held within any area to which such record relates by a person who has been found on evidence produced before him to be entitled to hold such land free of rent in consideration of some service to be rendered, a rent at a rate which the Revenue officer may deem fair and equitable having regard to the rates of rent generally paid by occupancy raiyats for lands of a similar description and with similar advantages in the same village or in the neighbouring villages and shall record such person in the record‑of‑rights as a raiyat: . . . . ." I do not think that this section helps the appellants. Mr. Akhtaruddin Ahmad has argued that since the transferor of the appellants, namely, Satish, could have not himself recorded as a raiyat under the aforesaid section 28 of the East Bengal State Acquisition and Tenancy Act, 1950, he could have also transferred the same. I do not think that the provisions of section 28, as quoted above, lead to such a conclusion. It only provides that if Satish had so desired he could get himself recorded as a raiyat upon assessment of rent in the manner indicated by aforesaid 1 section 28 of the Act. No further conclusion can be drawn from that section. The aforesaid section does not authorise the transference of a service‑tenure. If a Chakran‑tenancy could not be transferred, it would not become transferable merely because of the provisions of section 2E of the Act as stated above. Although the learned District Judge did not discuss Exhs. 3 and 3 (a), it does not necessarily mean that the Appellate Court below did not advert to them. Secondly in view of what I have discussed above, the aforesaid documents would not become very material and vital pieces of evidence in the context of the case made out by the parties in this case. The crucial point is that plaintiffs did not acquire any title on a transference not allowed by law. For reasons stated above, I do not think that I would be justified in interfering with the judgments and decrees pronounced by the Courts below. The appeal is, accordingly, dismissed without any order as to costs. Leave to appeal under clause 15 of the Letters Patent as prayed for is refused. S. A. H./S. Q. Appeal dismissed.