Law: Bengal Tenancy Act (VIII of 1885)

Section: 3(17)

Bengal Tenancy Act (VIII of 1885), S. 3(17)-Provision makes payment of rental conditio sine qua non for creation of tenancy-Bargadar claiming status of tenant in circumstances mentioned in clause (i) of S. 3 (17)-Not absolved from establishing that in fact he is a tenant.   Section 3 (17) of the Bengal Tenancy Act, 1885 defines a tenancy and makes stipulation for payment of rental a conditio sine qua non for the creation of tenancy. The proviso puts an embargo upon persons who cultivate land under a system generally known as "Adhi", "Bhag" or "Barga", when the land is taken on the basis of delivering a share of the produce to the landlord, from claiming that they are tenants. Anybody who is described as Adhiar, Bargadar or Bhagdar is prevented from claiming that he is a tenant within the meaning of section 3 (17) of the Act. But, in the circumstances mentioned in clause (i) of the proviso, only the bar is removed and nothing more is done. It does not, contrarywise, absolve such person from proving that, in fact, he is a tenant. Clause (i) of the proviso merely means that if there is an admission by the landlord in any document executed by him or executed in his favour and accepted by him admitting such a person to be a tenant, then notwithstanding his description as an Adhiar, a Bargadar or a Bhagdar, he would not be shut-off from contending that he is a tenant. Even then, the person described as holder of Adhi Barga or Bhag, is called upon to prove that he is a tenant by proving the necessary ingredients which go to the making of a tenancy.   Partition-Suit by co-sharer-Residuum of 2 decimal lands found unaccounted for Prayer for partition cannot be refused on ground that some co-sharer, whose existence has not been proved, has not been impleaded as party.   JUDGMENT   This appeal by the defendant arises out of the following circumstances.   Plaintiff instituted a suit for declaration of his title to the suit-properties part of which appertained to what has been described as plot No. 194 and another as plot No. 111. He asked for recovery of possession with regard to the land covered by plot No. 194 and in…