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Shankar Yesu Kargutkar Vs. H.H. Khem Sawant - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberSecond Appeal No 268 of 1928
Judge
Reported inAIR1932Bom3; (1931)33BOMLR1303
AppellantShankar Yesu Kargutkar
RespondentH.H. Khem Sawant
DispositionAppeal dismissed
Excerpt:
.....in spite of the clause in one kabulayat passed by one of the tenants agreeing to make over the land to the state at the expiry of the current year, questions of this character cannot be determined by a clause such as the present but that the matter must be judged in the light of the .actual facts, and referring to the case of gangaji v. am constrained to hold that suit is not bad for want of parties and that defendants nos. 1, 4 and 5. the lease at that time had still fifteen years to run, and the fact that the plaintiff did not think it necessary to bring a suit under section 42 of the specific relief act in order to contest the statement that the defendants were permanent tenants would not, in virtue of the privy council decision just referred to, give rise to a starting point of..........ancestors of the present appellants, and therefore it cannot be held to bind them. that case was a rent suit, and what was claimed was rent. no question of ejectment arose, and on reference to the reasons for the finding of the learned subordinate judge which are at page 32 of the record, what he says is as follows:-as plaintiff has based his suit on a written contract and as defendant ho, 1 has undertaken to pay the balance of rent on the ground that all co-sharers used to pay the rent to his father and after him to defendant no, 1 and that as his father and himself used to pay the whole rent to plaintiff, i. am constrained to hold that suit is not bad for want of parties and that defendants nos. 2 and 3 are not personally liable.6. this at the most amounts to a finding that defendants.....
Judgment:

Baker, J.

1. The plaintiff, the Sar Desai of Sawantwadi, sued thirty-three defendants for possession of the property in suit after removal of the buildings which defendants had built on the land, for arrears of rent, and for costs, alleging that the property which belongs to the Savantwadi State was leased for twenty-five years from April 1,1897, to one Narayan Venku Kargutkar, who is the ancestor of the Hindu defendants, and one Farsoo Niklu who is the ancestor of defendants Nos. 10 to 12. The other defendants held under these defendants. The defendants set up various pleas of permanent tenancy, limitation, and so forth, and claimed compensation. The first Court, the Subordinate Judge of Vengurla, awarded plaintiff possession as against defendants Nos. 1 to 17 and the heirs of defendant No, 18, but dismissed his suit as against the Christian defendants other than defendants Nos. 2 to 16, who were held to be ancient tenants of their portion liable to pay rent to the plaintiff according to the custom of the country under Section 83 of the Bombay Land Revenue Code.

2. Two appeals were preferred against this decree, one by the Kargutkar defendants against the decree against them, and one by the plaintiff against the dismissal of his suit as against the Christian defendants already referred to. Both these appeals were dismissed by the District Court of Ratnagiri. No second appeal has been made by the plaintiff as against the dismissal of his appeal, but defendant No. 17 and the heirs of defendant No. 18 have appealed to this Court.

3. We are not now concerned with the case of the Christian tenants, but only with the family of Kargutkar. The lease in question was passed by Narayan Venkaji Kargutkar. The genealogy will show that he had two brothers Yesu and Krishna. Yesu had two sons, Venkaji defendant No. 16 and Shankar defendant No. 17, and Krishna, who is defendant No. 18, had four sons. The present appellants are defendant No. 17 and the sons of defendant No. 18. Defendant No. 1 has not appealed.

4. The principal points which arise in this appeal are four: firstly, whether the lease of 1897 passed by Narayan has the effect of negativing any claim on his part to be a permanent tenant of the lands in suit; secondly, if so, whether it is binding on his co-sharers and their descendants, i.e., the present appellants; thirdly, whether the claim to be permanent tenants set up by the appellants is res judicata ; and, fourthly, whether the appellants are entitled to any compensation for the houses which they have built in the land. The findings of fact of the Courts below are: firstly, that Narayan and his brothers Yesu and Krishna were joint, and Narayan was the manager of the family. And it appears that the present appellants still live with defendant No. 1 Vithal who is the son of Narayan, who, as I have said, has not appealed. The lower appellate Court held that both the Kargutkar defendants and the Christian defendants were permanent tenants under the presumption arising under Section 83 of the Bombay Land Revenue Code, the origin of their tenancy being lost in antiquity, but by reason of the lease Exhibit 80 passed by Narayan and by Niklu who was the ancestor of defendants Nos. 10 to 12, the claim of these persons to be permanent tenants was extinguished. This did not apply to the other Christian defendants who were not bound by the acts of their ancestor, and therefore their rights were unaffected by this lease, but as I have said, they are not parties to this appeal, and we are not concerned with them. The lease, which is dated December 5, 1897, but takes effect from April 1,1897, was for twenty-five years, and therefore expired on March 31, 1922. That lease contains an admission that the executants, i.e., Narayan and Farsu, are annual tenants, and it also contains clauses by which they bind themselves to vacate the land at the expiry of the period of the lease. It has been argued by the learned Counsel for the appellants that this is not inconsistent with permanent tenancy, and that the execution of this lease cannot operate to do away with the permanency of the tenancy which the executants had already acquired by reason of their long possession, and in support of that proposition he has relied mainly on two cases, one of which is a case between the same plaintiff and other defendants relating to land in the same place, i.e., Vengurla, and that is the well known case of Raghunath v. Lakshuman (1899) 2 Bom. L.R. 93 and the other case on which he has relied is the case of Rama v. Abdul Rahim : AIR1921Bom395 . I do not think it is necessary to give the details of the kabulayat, which is a long document, but it will be necessary to give the facts which led up to the execution of this kabulayat. Now it appears that about the year 1889 there were disputes between the Savantwadi State and its tenants with regard to the amount of rent to be recovered from them, and in that year certain of the tenants including Narayan made an application to the Bombay Government dated October 19, 1888, saying that the assessment of the thikans occupied by them was Rs. 1,432 odd, but the Savantwadi State was demanding Rs. 800 odd in addition, and asking Government to interfere and order the State to accept the assessment fixed by the revenue survey settlement. In consequence of this petition certain steps were taken by the political authorities, and we find a letter from the Political Superintendent, Savantwadi, in October 1889, saying that the Karbhari of Savantwadi had offered to grant leases to the petitioners for thirty years from 1884-85, the year of the Survey Settlement, on condition that an extra rent of Rs. 300 a year was paid, and recommending that that settlement should be accepted as being equitable to both parties. And this was sanctioned by Government by a resolution of December 13,1889. It appears, however, that this settlement was not at once brought into operation, and the subsequent events are narrated in the preamble of the kabulayat which is Exhibit 80, dated, as I have already said, December 5, 1897. The executants, i.e., Narayan and Farsu, say that in August 1889 they had appeared before the Karbhari and expressed their willingness to pay the enhanced rent and to pass a kabulayat. And that is probably what led to the reference in the Political Agent's letter referred to above as to the offer made by the State authorities being equitable to both parties and accept, able to the tenants, It appears, however, that nothing was done up till 1897, and then there was a fresh interview between the tenants and the Political Superintendent, and the kabulayat in question was passed. It will be seen, therefore, that the tenants took eight years to consider the matter, and that the intervention of the political authorities was twice necessitated, once in 1889, and once about 1897, and in the face of that I do not know how it can be argued with reference to other cases which are based on different facts that there was any question of the tenants being unaware of what the arrangement was into which they were entering. This kabulayat is for twenty five years. It imposes restrictions with regard to the cultivation of the thikans, the planting of trees and the erection of buildings, and at the end of the last paragraph of Clouse 9 and Clouse 14 the executing tenants expressly give up any right to have the land continued to them after the expiry of the period of the lease, In the face of this, even supposing that they were permanent tenants before, it can only be held that they gave up their permanent tenancy by arriving at a compromise with the State authorities. The learned advocate for the appellants has relied on, as I have said, two cases, one in Rama v. Abdul Rahim and the other case arising between similar parties in Raghunath v. Lakshuman, In Raghunath v. Lakshuman, which was a test case brought by the Savantwadi State, in which they failed, Sir Lawrence Jenkins, after referring to the various documents in the case, came to the conclusion that in spite of the clause in one kabulayat passed by one of the tenants agreeing to make over the land to the State at the expiry of the current year, questions of this character cannot be determined by a clause such as the present but that the matter must be judged in the light of the . actual facts, and referring to the case of Gangaji v. Sakharam (1889) P.J. 156 he held 'there the determining point was the fact that the ten ant still continued to hold and that is what has happened here.' If the present case is judged in the light of the facts, it will be seen that there was a dispute between the tenants and the landlord, i.e., the State, that the State wanted to enhance the rent, that the tenants then approached the Bombay Government as the paramount power, that the political authorities intervened, and by an arrangement between the parties it was settled that the lease should be given for twenty-five years at a slightly enhanced rent, and that was accepted by the tenants, who undertook to give up the land at the end of that period. The case in Rama v. Abdul Rahim, relied on by the learned advocate for the appellants, is a case in which a tenant had been in possession of the laud as far as memory went, but in one year he executed a rent-note for one year but continued in possession as before paying throughout the same amount of rent, and it was held that this was not sufficient to rebut the presumption of the permanency of the tenancy which arose from its antiquity. Now, it would be seen that in both these cases there was an admission of annual tenancy, but in spite of that the tenants continued in possession as before. In the present case there was no question of one rent-note acknowledging an annual tenancy, but we have a lease entered into after protracted negotiation between the parties by which the tenants were confirmed in undisturbed possession of the land for a period of twenty-five years, and that being so, if the case is decided on the surrounding facts, in my opinion, the view of both the Courts below that a compromise of this nature does away with the permanency of the defendants is correct. It has been argued by the learned advocate for the appellants that the only dispute between the parties being as to the amount of rent, it was not necessary to incorporate any provisions as to the duration of the tenancy in the rent-note. But I am unable to accept this position. When once there was a dispute between the parties, when the question of a settlement arose other terms might be incorporated in the settlement. It is to be observed that the date of this dispute was some years prior to the decision in Raghunath v. Lakshuman, and as has been pointed out by the learned Judge of the Court below, nobody knew whether the State would be successful against the tenants or not in ejectment suits which as a matter of fact were brought against a number of the tenants. The binding nature of a compromise such as this has been laid down in numerous cases. The learned Counsel for the respondent has referred to Story's Equity Jurisprudence, 3rd Ed., Para 131, and to a case, Varajlal Shivlal v. Dalsukh Varajlal (1875) 12 B.H.C.R. 196 which says that defendants would be estopped from contesting it. It is not possible to say what the result of a suit by the State against the executants of this lease to eject them from the land or to recover enhanced rent would have been, and taking the right of the State to be doubtful, the compromise between the parties will none, the less be valid The learned Counsel has further referred to the case of Stapilton v. Stapilton W. & T.L.C. Vol. I. 8th Edn., p. 234, laying down that the compromise of a doubtful right is a sufficient foundation of an agreement. This will also dispose of the question of whether the agreement entered into by Narayan will bind his brothers, i.e., the fathers of the present appellants, defendants Nos. 17 and 18, The learned Judge of the Court below has found that the compromise was for the benefit of the family, because but for it the State would have tried to evict them from the land, and in view of the cases quoted which I have just referred, the compromise would be binding on the other members of the family.' I will go so far as to say that it was for their benefit, inasmuch as the State, which at that time was demanding an enhanced rent, confirmed the tenants in their possession of the land for a further period of twenty-five years at a rate of rent which was not so much enhanced. The case of Narayan v. Political Agent, Sawantwadi (1904) 7 Bom. L.R. 173 was not a case in which the compromise was of doubtful rights, but one in which the person executing the kabulayat had surrendered a permanent tenancy in exchange for a tenancy for a fixed term of twenty-five years. In that case, therefore, the permanent tenancy was held proved, whereas in 1889 or rather in 1897 the permanent tenancy of the present tenants was not proved, and it was not possible to say what the result of litigation would be. In these circumstances; I am of opinion that the compromise which was entered into between Narayan and the State (I omit the name of Niklu--he is not a party to the proceedings) was for the benefit of his co-sharers, and in view of the cases quoted above, this compromise must be held binding.

5. The next point which has been raised by the learned advocate for the appellants is that the question of the lease being binding on his clients is res judicata by reason of the judgment in Suit No. 207 of 1907 of the Vengurla Subordinate Judge's Court. That was a suit by the present plaintiff against Vithal Narayan, i.e., present defendant No. 1, Yesu the father of defendants Nos. 16 and 17, and defendant No. 18 Krishna, and two of the Christian defendants to recover rent under the kabulayat. Defendants Nos. 2 and 3 in that suit representing defendants Nos. 16 to 18 in this suit pleaded that they were not liable to pay rent to the plaintiff, because they used to pay their share of rent to defendant No. l's father who paid to plaintiff. Issues Nos. 2 and 3 in that case were, is the kabulayat not binding on defendants Does it bind defendants Nos. 1,2,3? And the finding was that it is binding on defendants Nos. 1,4 and 5. Hence it is contended that the Court in that case decided that the kabulayat was not binding on the ancestors of the present appellants, and therefore it cannot be held to bind them. That case was a rent suit, and what was claimed was rent. No question of ejectment arose, and on reference to the reasons for the finding of the learned Subordinate Judge which are at page 32 of the record, what he says is as follows:-

As plaintiff has based his suit on a written contract and as defendant Ho, 1 has undertaken to pay the balance of rent on the ground that all co-sharers used to pay the rent to his father and after him to defendant No, 1 and that as his father and himself used to pay the whole rent to plaintiff, I. am constrained to hold that suit is not bad for want of parties and that defendants Nos. 2 and 3 are not personally liable.

6. This at the most amounts to a finding that defendants Nos. 2 and 8 who are the ancestors of the present appellants are not personally liable for the rent because they used to pay it to defendant No. 1 who paid it to the plaintiff. It is in no sense a finding that the kabulayat in so far as it deals with the non-permanent nature of the tenancy is not binding on defendants Nos. 2 and 3 in that case. That point was not before the Court, and was not necessary for the determination of the suit. The learned Counsel for the respondent has referred to a number of cases on this point in which it was held that where a point was not necessary for the decision of the suit, a finding on that point would not be res judicata. He has referred to the cases of Bai Nathi v. Narshi Dullabh (1919) 22 Bom. L.R. 64 Surrendra Nath v. Kamakhya Narain Singh (1929) 32 Bom. L.R. 515 Midnapur Zamindari Company v Naresh Narayan Roy (1920) L.R. 48 IndAp 49 and Dhanna Mal v. Moti Sagar (1927) L.R. 54 IndAp 178 29 Bom. L.R. 870 The present case, however, is somewhat different to the cases which have been quoted. The question which is now at issue between the parties, i.e., the nature of the tenancy created under Exhibit 80 the kabulayat, was not before the Court at all, nor was it considered. The fact that defendants Nos. 2 and 3, by reason of their paying the rent to defendant No. 1 the eldest brother, who then paid it to plaintiff, were not liable to pay rent to the plaintiff directly has no bearing upon the question of whether they are entitled to remain in possession of the land after the expiry of the period fixed by the lease. I agree, therefore, with the finding of the lower appellate Court that the suit is not barred by reason of res judicata.

7. Then it has been contended by the learned advocate for the appellants that under the Statute of Limitations the present appellants have acquired a status of permanent tenants by reason of their assertion of an adverse title for a period of more than twelve years, and he has referred to the case of Kamakhya Narayan Singh v. Ram Raksha Singh : (1928)30BOMLR1361 which is an entirely different case to the present, the facts being that after the expiry, of the lease or the death of the lessee his heirs held over against the will of the landlord and without paying him any rent, and obviously has no application to the present case where the tenants were entitled under the lease Exhibit 80 to hold the land for a period of twenty-five years which only expired in 1922, the present suit being brought in 1924. There is a case directly in point, Bhailal v. Kalansang : (1927)29BOMLR1558 , which refers to the Privy Council Case in Mohammad Mumtaz Ali Khan v. Mohan Singh (1923) L.R. 50 IndAp 202 where the Privy Council say that they are (p. 209) 'unable to affirm as a general proposition of law that a person who is, in fact, in possession of land under a tenancy or occupancy title can, by a mere assertion in a judicial proceeding and the lapse of six or twelve years without that assertion having been successfully challenged, obtain a title as an under-proprietor to the lands.' The assertion of the title of the appellants is presumably made in the suit of 1907 already referred to. The plaintiff was successful in obtaining a decree for rent against defendants Nos. 1, 4 and 5. The lease at that time had still fifteen years to run, and the fact that the plaintiff did not think it necessary to bring a suit under Section 42 of the Specific Relief Act in order to contest the statement that the defendants were permanent tenants would not, in virtue of the Privy Council decision just referred to, give rise to a starting point of limitation which would enable the defendants to count adverse possession from that date, and so perfect a title of permanent tenancy.

8. The sole remaining point is as to the right of the defendants to compensation for buildings on the land. The kabulayat expressly provides that any buildings on the land erected after its date should be liable to removal without compensation. But it is contended that there are buildings on the land erected by them prior to the commencement of the kabulayat in April 1897 for which they are entitled to compensation, and in support of that proposition reliance is placed on the deposition of the plaintiffs' clerk as to the existence of buildings on the land prior to that date. That deposition, which is Exhibit 149, was read. The witness says he was appointed as karkun by plaintiff there in the year 1912. Any buildings standing on the land at the time when he was appointed cannot be said to be proved to have been erected before the year 1897. As a matter of fact there is no evidence as to when these buildings were erected or by whom they were erected or what the cost of erecting them was, and in this state of the evidence I am not prepared to hold on the evidence of a man whose acquaintance with the land began in 1912 that it is proved that the buildings on the land have stood there from ancient times and that any compensation should be awarded in respect of them.

9. The result is that the decree of the lower appellate Court is confirmed, and the appeal dismissed with costs payable to respondent No. 1.

Nanavati

1. J. I concur.


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