Skip to content


Ram Lal Dutt Sarkar Vs. Dhirendra Nath Roy - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in(1944)46BOMLR192
AppellantRam Lal Dutt Sarkar
RespondentDhirendra Nath Roy
DispositionAppeal dismissed
Excerpt:
.....district judge had dealt with the question specifically, examining the contents of the kabuliyats from this particular angle no ambiguity could well have arisen. ' this is a singularly unconvincing way of stating a finding that srinath was put in possession and was dispossessed but a phrase natural enough if all that be meant is that the defendants and their predecessors were kept out of possession......appellate court's finding of fact that the plaintiffs' predecessors gave possession of the 37 acres to srinath and thereafter dispossessed him.3. the grantors of the tenure were certain persons called rai-members of a family who owned the zemindari of a place in jessore district called narail and who are referred to as the narail babus. of these certain members owning a one-sixth interest were not parties to the patta of 1875, but the other members demised thereby the remaining five-sixths share in a mouza called orakandi said to have an area of 1,464 bighas after deduction of certain revenue free lands and village pathways. for 822 bighas then in the occupation of raiyats the rent reserved was rs. 957-14-8. for a further 4 bighas 13 cottahs-a small cultivated area held in mas-the.....
Judgment:

George Rankin, J.

1. This appeal is brought by special leave from a decree dated March 29, 1938, passed by the High Court at Calcutta on second appeal. The respondents have not appeared before the Board and Mr. Wallach for the appellant has carefully discharged his duty to see that all relevant matters are placed before their Lordships. The decree under appeal reversed the decrees of the Additional District Judge and Subordinate Judge at Faridpur, dated respectively April 17, 1935, and February 6, 1933.

2. The suit was begun on April 15, 1931. It was a suit for three years' rent of a permanent tenure which had been granted by the predecessors of the plaintiffs and of certain pro forma defendants to one Srinath Sarkar by a patta dated July 8, 1875, and for which a kabuliyat had been executed by Srinath on May 22, 1877. He was engaged on zemindari management in the service of the plaintiffs' predecessors who granted him the patta. He died childless in 1890 and his widow Patambari Dassee succeeded him as tenure-holder. She died on March 3, 1930, whereupon the appellant and his two brothers succeeded as her husband's reversioners. They were not originally made parties to the suit but were added on their own application. The appellant has since acquired hisbrothers interests. His defence to the suit is that part of the lands comprised in the) patta of 1875 were demised at a lump sum rent, and that, as the plaintiffs or their predecessors some time in the eighties of last century dispossessed Srinath of portion of these lands measuring some 37 acres and worth about Rs. 56 per annum, no part of that rent is payable by him his right being to a suspension of the entire rent until the lands in question are restored to him. The trial Court and the lower appellate Court sustained his defence and dismissed the claim for rent. The High Court on second appeal remanded the case for calculation of the proper abatement of rent to be allowed to the appellant. His main grievance is that the learned Judges of the High Court have contrary to Sections 100 and 101 of the Civil Procedure Code set aside the lower appellate Court's finding of fact that the plaintiffs' predecessors gave possession of the 37 acres to Srinath and thereafter dispossessed him.

3. The grantors of the tenure were certain persons called Rai-members of a family who owned the zemindari of a place in Jessore district called Narail and who are referred to as the Narail Babus. Of these certain members owning a one-sixth interest were not parties to the patta of 1875, but the other members demised thereby the remaining five-sixths share in a mouza called Orakandi said to have an area of 1,464 bighas after deduction of certain revenue free lands and village pathways. For 822 bighas then in the occupation of raiyats the rent reserved was Rs. 957-14-8. For a further 4 bighas 13 cottahs-a small cultivated area held in Mas-the rent was to be Rs. 4-11-0 at Re. 1 per bigka. For a further area of 635 bighas which included patit or waste land rent was fixed at Rs. 317-15-9 ; but it was to remain rasad (in abeyance): payment being made at Re. 1 per bigha for such area as was found to be tilled in 1876 and at eight annas for the further areas found till-ed in later years. The claim for rent in the present suit does not include any of this rasad rent but is for Rs. 770-1-4, the plaintiffs' proportion of the sum of Rs. 962-9-8-that is Rs. 957-14-8 plus Rs. 4-11-0-together with certain cesses., The sum of Rs. 962-9-8 is called in the patta the talabi jama or demandable rent. As to Rs. 957-14-8 it appears to their Lordships to be a lump sum rent in respect of a five-sixths share in 822 bighas 19 cottahs 6chittahs.

4. In 1906 or 1907 in the course of the survey and settlement then being carried out the lands of khatians Nos. 1 to 17 inclusive were entered as in the occupation of raiyats paying rent to the Narail Babus, including the plaintiffs. Of these the lands of eight khatians--Nos. 3, 4, 6, 11, 13, 14, 15, and 17- are claimed by the appellant to be part of the 822 bighas which were settled at a lump sum rent. These lands amount in area to some 37 acres and their rentals to about Rs. 56. Much time was devoted at the trial to the plaintiffs' contention that these lands are not part of the 822 bighas but lands belonging to Ratandanga Bil and Patiladanga Bil-marshy area which according to the plaintiffs were outside the mauza of Orakandi referred to in the patta of 1875. A further contention of the plaintiffs was, that some lands held by tenants under them were chhit or detached lands of another mouza called Aruakandi.

5. But it has, been held by the trial Court and by the lower appellate Court that mourn Orakandi included these two Bils and) that the 37 acres now in question were part of the raiyati area of 1875 (1282 B.S.')-part that is of the 822 bighas which bore the lump sum rent of Rs. 957-14-8. This must now be actepted.

6. The trial Judge found that the raiyats on these lands had been paying rent to the plaintiffs since at least 1293 B.S. or 1886 A. d. But since the, plaintiffs produced no papers to show that they had collected these rents between 1875 and 1886, he concluded that Srinath had been given possession and then ousted. He stressed for this purpose a passage in thekabuliyat executed by Srinath in 1877 wherein Srinath on the recital that he had applied for settlement of the mouza Orakandi and that for 1,464 bighas a sum of Rs. 1,280 had been fixed as jama-divided into Rs. 317 rasad and Rs. 962-9-8 demand-able-says :

I on taking a stettlement and receiving a patta which was executed on Ashar 25, 1282, B.S., and was registered on September 28, 1875, am in possession in mafussl.

7. The learned Additional District Judge expresses agreement with the trial Court in several passages of his judgment which are concerned with the question whether the 37 acres now in question were part of the original area of 822 acres mentioned in the patta. He agrees that they did not fall outside Orakandi and he rejects the theory of chhits of Aruakandi. He says :

The learned lower Court discussed the entire evidence as well as the kabuliyats with due care. I agree with this view that the lease comprised 5-6ths of the Mouza Orakandi (save the rent-free, etc.) that is of the whole block composed of Orakandi, Ratandanga beel and Patildanga beel. Patambari was in possession of the whole of the block, except the scattered parcels. The theory of chita lands has been fully discussed by the learned lower Court. I do not think it necessary to repeat the reasonings given by the lower Court in its judgment regarding this theory. It is unnecessary to discuss further. I have carefully considered the entire evidence on the record and I agree with the views taken by the lower Court regarding Khatians Nos. 1-17 and I hold that the lands of these khatians are covered by the kabuliyat Ex. Order (1) executed by Srinath Sarkar in 1284 B. S. (= 1877-78), and that the plaintiffs dispossessed the defendants and their predecessors of those lands. The appeal of the plaintiffs therefore fails. Issue No. 2 is decided accordingly against plaintiffs.

8. Issue No. 2 was in these terms :-

Was there dispossession of any portion of the tenancy by the landlords? Are the landlords in possession of any portion of the tenure If so whether there should be a suspension or abatement of the rent

9. Ghose J. in the High Court says :

It has been found by both the Courts below that the landlords did not make over possession of the whole of the 'demised land to the lessees but kept a portion to themselves....These lands were part of the mouza which was leased to Srinath Sarkar but they werel not made over to Srinath. Srinath however paid the rent without any objection for the dispossession of a part.

Again

We find that here there was in effect no dispossession but an original failure of making over possession and this failure was acquiesced in for 55 years by the original lessee and his widow....' Bartley J. held that the doctrine of suspension of rent

cannot be applied rigidly in this country and that it should properly be regarded as a rule of justice, equity and good conscience.

10. A main difficulty in the case is to ascertain with what degree of accuracy the word ' dispossession ' is employed. Strictly used it could only apply to Srinath himself. It is no one's case that his widow or reversioners were ever in possession of these 37 acres. Since findings of fact by the lower appellate Court are to be treated as final, they should at least be clear and specific-not ambiguous or inferential. A general approval given to the views of the trial Court will not necessarily incorporate all its findings in detail-especially if accompanied by language which casts doubt on a particular point. Ghose J. seems to have misinterpreted the findings of the trial Court and thus disabled himself from appreciating correctly the findings of the lower appellate Court, But their Lordships are not prepared to hold that the High Court was obliged to consider that the Additional District Judge had found as a fact that Srinath had been put into possession and then ousted. If the learned Additional District Judge had dealt with the question specifically, examining the contents of the kabuliyats from this particular angle no ambiguity could well have arisen. But the specific expression of his finding is ' that the plaintiffs dispossessed the defendants and their predecessors of those lands.' This is a singularly unconvincing way of stating a finding that Srinath was put in possession and was dispossessed but a phrase natural enough if all that be meant is that the defendants and their predecessors were kept out of possession. The reference to the second issue only increases the uncertainty ; and while there are indications in other parts of the judgment that the learned Judge may have agreed that Srinath was dispossessed in the strictest sense of the term, their Lordships see no such statement as can be taken to remove the ambiguity in the crucial passage. If it is in law of importance to the rights of the parties to decide whether the defendants have proved that Srinath was ever in possession of the 37 acres, their Lordships think that the High Court was entitled to decide that question upon the evidence before it.

11. The documents, the oral evidence and the view taken of them by the trial Judge are made clear in his able judgment. The exhibited kabuliyats of 1883-4 and 1890-1 and the mention made of these eight tenancies in the plaintiffs' books of 1886 led him to conclude that ' these eight raiyats werf holding these lands at the date of the lease ' of 1875. But

no papers have been produced to show that the landlords never gave up collecting these rents and did so between 1282 (1875-6) to 1293 (1886-7); so that my conclusion in view of the admission of possession in the kabtdiyat [that is, of 1284 (1877-8)] is that the landlords dispossessed the lessee from his share in these lands, and kept his widow Patambari out of possession of it and are in possession of it to this day.

Their Lordships think that the High Court was right in not accepting this result as proved by the evidence. The recital of possession in the kabuliyat of 1877 is in the vaguest and most general terms, and if taken correctly, refers not only to the raiyati area but to the whole area of 1,464 bighjis which included a large quantity of waste lands including watery waste of the two bils. As the burden of proving eviction by the Narail Babus is heavy on the appellant, it seems unreasonable to hold that the defendants' predecessor was in receipt of rent from the eight tenancies merely because at this distance of time the plaintiffs have not proved that they continued to collect it-it being plain that in 1886 they were treating the tenancies as old ones. The purport and effect of the 1883 kabuliyat Ex. 4(2) is that the jama was not a new one but the old jama recorded in the name of Bhuban Mohan Mandal mu-dafat Dilaram Nai. The recital in Ex. 4 (1890) of the auction purchase of 1885 is of a tenancy standing in the name of the judgment-debtor mudafat Majumdar Bairagi. So too with the kabuliyat of 1891 Ex. 4(4). These ka-buliyats may not truly represent the facts but what they purport to show is not that an old tenancy had come to an end in 1875 or 1877, that rent had been paid to a new landlord, and that now the tenants were to begin to hold anew from the Narail Babus but that the old tenancy had continued. There is indeed no solid ground for holding that Srinath ever realised rent from these eight holdings. While no explanation is made out 'for his1 not having possession of khatims Nos. 1 to 17-about 43 acres in all-weight must be given to the fact that there is no trace of complaint by Srinath and that the whole rent demandable under the patta of 1875 was paid by him until his death in 1890 and by his widow till 1930. He was in the service of the Narail Babus till his death as manager of one pargannah and apparently deputy manager at their headquarters.

12. This case must, their Lordships think, be regarded as one in which possession of the 37 acres was not given to the lessee and was not insisted on by him.

13. The rest of the judgment is not material to this report.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //