Tenure Holder

 

Muhammad Riyazul Ameen Memon

Final Year Student, Hidayatullah National Law University, Raipur

 

 

A tenure holder is the term used in the Chhattisgarh Land Revenue Code, 1959 for describing a particular type of land owners. Section 2(1) (z) of the code defines tenure holder. This section states that Tenure holder means a person who holds land from the state government and who is or is deemed to be bhumiswami under the provisions of this code;

 

All those persons who were holding land from the government under the various land revenue tenancy laws operative in different parts of the state were brought on par under the present code and were conferred the status of bhumiswami under Section 158 of the code. [i]

 

To be a tenure holder it is essential that the person should hold land from the state government. A person holding land from the central government in not a tenure holder within the meaning of the Code. Similarly a person holding the land from any other private person is not a tenure holder, in whatever rights he may hold the land.[ii] The second necessary essential of a tenure holder is that he should be a Bhumiswami under Section 158 of the Code. The classes of persons who are termed as Bhumiswami from the date of coming into force of this code are mentioned in clauses (a) to (e) of Sub – Section 1 of Section 158 of the code.

 

Chapter XII of the Code deals with the Bhumiswami, their rights and liabilities. The definition of the word 'tenant' in this clause is exhaustive. Accordingly, The first condition for a person to be tenant under this clause is that he should hold land from Bhoomiswami. Further, it is provided that the person holding land from a Bhoomiswami , should hold it as an occupancy tenant under Chapter XIV .of this-Code.[iii] A tenant is by the definition a person who holds land as an occupancy tenant from a Bhumiswami; but the status of a Bhumiswami is recognized for the first time by the Code and an occupancy tenant from a Bhumiswami would mean only a person belonging to that class who acquires rights of occupancy tenant after the Code comes into force. The position of a tenant prior to the date on which the Code was brought into force does not appear to have been dealt within this definition. The definition which is specially devised for the purpose of the Code throws no light on the nature of the right which invests the holder of land with the status of an occupancy tenant at the commencement of the Code.

 

Tenure holder in general or bhumiswami in general mean the owner of the land. They are neither government tenants nor lessee; they are the owners of the land. Though the ownership does not vest in them absolutely as according to Section 57 state government is the owner of all the land but except for the state government, such persons are owners against everyone else.[iv]

 

Class of Tenure:There shall be only one class of tenure holders of lands held from the state to be known as Bhumaswami.[v]

 

 


By enacting Section 157 of the Code, the Legislature has declared that ownership in all lands etc. belong to the State Government. But it is not necessary that all such lands are held by the State Government. This section for the first time says that from the State Government, all person holding land as tenure holders shall be called bhumiswami, meaning thereby ‘owner of the land’. Although absolute ownership does not vest in such persons, still leaving aside the State Government, such persons are owners against everyone else. They are neither tenants nor Government lessees who are dealt with separately.

 

Distinction Between Bhumiswami Rights And Tenancy Rights- Section 157 states that there shall be only one class of tenure holders of lands held from the State to be known as Bhumiswami. The distinction between tenure rights and tenancy rights is real. A Bhumiswami is neither a tenant nor a Government lessee. Ownership as contemplated under s.57.is also distinguishable from tenure as defmed in section 157 of the Code.[vi] A Bhumiswami is neither a tenant nor a Government lessee.[vii]

 

Restriction on the rights of transfer and vires of the restriction – Sub Section (1) of section 165 enunciates that a bhumiswami may transfer any interest in his land. But this right is subject to two conditions contained in this very sub – section (1). These are –

(a)     A bhumiswami cannot transfer by way of lease for and period whatever any land comprised in his holding, except in the cases provided for in sub section (2) of section 168.

(b)    All other kinds of transfers to be made subject to the provisions of other sub sections of section 165.

 

Section 168 puts restriction on bhumiswamis in respect of their rights to transfer land by way of lease. A bhumiswami under this section has been given a right to transfer land for one year during any consecutive period of three years. There are two exceptions also to this provision.

 

This first proviso to the section provides that a bhumiswami who is member of a registered co operative farming society may lease out his land for any period to that society. The second exception is that provisions of this section shall not apply to land held for non agricultural purposes.

 

Acquisition of Bhoomiswami right by adverse possession­ Limitation Act S.27.- Right of Bhumiswami can be acquired by adverse possession amidst an individual i.e. on the land of a Bhumiswami.[viii]

The Single Bench decision in Bagdirarn stands overruled by the Full Bench decision of this Court in Kashiram v. Nathu [1980 RN 516). Accordingly the question of law on which the appeal has been admitted has to be answered in the affirmative and in favour of the plaintiff-appellant. Whether the plaintiff has proved his adverse possession extending over the statutory period of 12 years is basically a question of fact that should be left to be adjudicated upon by the lower appellate Court which is the final Court of fact. [ix]

 

The only question that arises for consideration in this appeal is whether the· requirement of knowledge to the respondent State is lacking in the present case which does not entitle the appellant prescriptive title. Both the Courts below on critical examination of the evidence have concurrently found that the plaintiff and prior to him his forefathers were in cultivating possession of the same for last about 70 years. This finding is finding of fact not open to challenge. To acquire title by adverse possession all that a party has to establish is that the possession was overt act without any attempt for concealment thereof from the person against whom the time is running so that the real title holder exercises due diligence as to what is happening on his property.[x]

 

CONCLUSION:

 The code has included only one type of tenure holder and has thus excluded all the other types of tenure holder. The code adopted the word bhumiswami to represent tenure holders of the state but bhumiswami is a mis-nomer for a tenure holder. Literally bhumiswami means the owner of the land which the tenure holder is not. The state is the owner of the land, and the tenure holder holds the land with the rights and liabilities defined in the code. The code uses the tern bhumiswami for the tenure holder but the proper word used should be bhumidhari which means holder of the land on certain statutory terms and conditions ‘A bhumiswami is known as the tenure holder but he is not the holder of tenancy right. The tenure holder is not a tenant. He holds land from the state government and pays land revenue to the state like owner of the land.  Though a wide range of rights has been given to the tenure holders under the code but these rights are subject to restrictions which prohibit freedom of the person to use his according to his own will. Apart from the restrictions which are there the definition given under section 158 though wide is limited and still the nature of the rights of tenure holder is sometimes confused with that of the occupancy tenants.

 

REFERENCES:



[i] Jindal, M.L, Madhya Pradesh and Chhattisgarh Land Revenue Code, 1959, 4th Edn., Raj Kamal Publication, Indore at pg 482

[ii] Dvivedi, Harikisan Nivas, Commentary on Madhya Pradesh Land Revenue Code, 11th Edn. , 1989,Law Journal Publication, Gwalior at  pg 116.

[iii] See, Chapter XIV, Land Revenue Code,1959

[iv] Supra Fn. 1 at pg. 470

[v] 157, Land Revenue Code, 1959

[vi] Gajrajsingh v. Krishnapalsingh, 2001 (1) MPLJ 281 (HC).

vii Rajaram v Dindayal, 1969 JW 603  

 

viiiRamcharan v. Bhura, 1989 (I) MPWN 246 (HC).

ixRamu v. Government of M.P., 1988 RN 152 (HC).

 

Received on 15.02.2014

Modified on 15.03.2014

Accepted on 24.03.2014

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Research J. Humanities and Social Sciences. 5(1): January-March, 2014, 47-49