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Devji Arjan Dalvadi Vs. Bhoja Vaija Kachar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case Number Second Appeal No. 542 of 1931
Judge
Reported inAIR1935Bom219; (1935)37BOMLR220
AppellantDevji Arjan Dalvadi
RespondentBhoja Vaija Kachar
DispositionAppeal dismissed
Excerpt:
.....talukdars as a manager on behalf of all co-sharers, was a valid one :;balaji bhikaji pinge v. gopal bin raghu kuli (1878) i.l.r. 3 bom. 23, distinguished ;;(5) that the defendant was liable to be evicted from the land. - - 6. it has been urged as well and in the alternative that the appellant has proved his connection with the land in suit from his predecessor-in-title up to so remote a period that its origin is lost in antiquity, and therefore, he must be presumed to be a permanent tenant within the meaning of section 83 of the bombay land revenue code. it is possible that the respondent might have failed to prove the origin of the appellant's tenancy had he been called upon to do so......were their tenants-at-will. they claimed that they were entitled to recover possession of the suit lands leased out by them to the tenants, that they had issued legal notices to put an end to the tenancies, and that the tenants had disobeyed their notices. the principal appeal is second appeal no. 542 of 1931, with which i shall deal, and the decision of this appeal will govern all the rest.2. the defendant in suit no. 716 of 1927, out of which second appeal no. 542 of 1931 arises, is dalvadi devji arjan. he pleaded that he was the owner of the land in suit and not a tenant, and that the rent-note, on which the suit was based, had been obtained from him by coercion, undue influence, and misrepresentation. this rent-note (exhibit 46 at p. 51 of the paper book) was executed by the.....
Judgment:

Barlee, J.

1. These appeals arise out of suits filed by the plaintiffs, sharers in the talukdari village of Khas in the Dhandhuka Taluka, Ahmedabad District, against the defendants, who, they asserted, were their tenants-at-will. They claimed that they were entitled to recover possession of the suit lands leased out by them to the tenants, that they had issued legal notices to put an end to the tenancies, and that the tenants had disobeyed their notices. The principal appeal is second appeal No. 542 of 1931, with which I shall deal, and the decision of this appeal will govern all the rest.

2. The defendant in suit No. 716 of 1927, out of which second appeal No. 542 of 1931 arises, is Dalvadi Devji Arjan. He pleaded that he was the owner of the land in suit and not a tenant, and that the rent-note, on which the suit was based, had been obtained from him by coercion, undue influence, and misrepresentation. This rent-note (exhibit 46 at p. 51 of the paper book) was executed by the appellant on June 5, 1913, and given to the Mamlatdar, Dhandhuka, on behalf of the Talukdari Settlement Officer, who was managing the village of Khas on behalf of the talukdars, amongst whom the present respondents were numbered. In this rent-note Devji stated as follows :-

I will neither mortgage nor sell this land but cultivate the same as a farmer of the talukdari village of Khas, so long as at the will of the talukdar of Khas village or their managers (sic.) and will deliver possession of the same when asked to do so without any objection.

3. The suit was based on breach of the terms of this rent-note inasmuch as the plaintiffs-respondents claimed that they asked the defendant Dalvadi Devji Arjan to give up the land and he had refused to do so. The trial Court held that neither coercion nor misrepresentation had been proved and that the appellant had not acquired a permanent occupancy right, and accordingly made a decree for possession. On appeal, the learned District Judge came to the same conclusion. In this Court the appellant is bound by the adverse finding of fact on the first issue that there had been neither coercion nor misrepresentation, and that the lease was not voidable on that account.

4. The principal contentions which have been put before us by the learned counsel for the appellant are : (1) that between the years 1856 and 1864 the predecessor-in-title of his client, the defendant-appellant, acquired an occupancy status similar to that of occupants in Government villages, and (2) that his long possession entitled him to the presumption under Section 83 of the Bombay Land Revenue Code that the duration of the tenure was co-extensive with that of his landlord.

5. The facts on which the first plea is based are these : At the time of the introduction of the British rule and for long after, Government treated the talukdars of the Dhandhuka taluka as lease-holders, and in consequence leases were periodically granted to them. In 1856 Government resumed possession of this village (made it khalsa, either they refused to grant a new lease on the expiry of the term of a previous lease or they exercised an act of resumption) and they managed the village for a period of seven years. During this period a survey settlement was introduced, and in 1863 the village was restored to the talukdars as Government agreed with the Talukdari Settlement Officer, who had reported that the quarrels of the talukdars inter se, which had been the reason for resumption, had ceased. The villages were restored on condition that the talukdars should not recover more than twice the vighoti fixed at the survey settlement. On this ground it has 'been contended that the persons on the lands ceased to be mere tenants and became occupants. We can find no justification for this view. Section 68 of the Bombay Land Revenue Code (Bom. V of 1879) provides that 'an occupant is entitled to the use and occupation of his land for the period, if any, to which his tenure is limited, or if the period is unlimited, or a survey settlement has been extended to the land, in perpetuity conditionally etc.', and this section is the legislative basis of the permanent rights of occupancy of Government villages. But Khas was restored to the talukdars in 1863, at which time the land law was that contained in Regulation XVII of 1827, and we can find nothing in that Regulation to support the view that a survey settlement and assessment of the land altered the tenure of the occupants. In the absence of any statutory enlargement of their rights between 1856 and 1863 they emerged' from the period of the management with their status and rights unchanged. If they were tenants-at-will at the commencement of that period they were tenants-at-will when the village was restored to the talukdars, and the presumption is that all tenants are tenants-at-will unless they can prove the contrary somehow or other.

6. It has been urged as well and in the alternative that the appellant has proved his connection with the land in suit from his predecessor-in-title up to so remote a period that its origin is lost in antiquity, and therefore, he must be presumed to be a permanent tenant within the meaning of Section 83 of the Bombay Land Revenue Code. It is possible that the respondent might have failed to prove the origin of the appellant's tenancy had he been called upon to do so. But he was not called upon to do so. The appellant did not set up Section 83, Bombay Land Revenue Code, as a defence, and is now estopped from pleading the antiquity of his holding, and therefore cannot succeed on this ground. We have been asked to remand the case in the interest of justice for a finding whether the appellant is entitled under Section 83 of the Bombay Land Revenue Code to the status of a permanent tenant. But we think that it would be inequitable to send down this issue at this stage. This litigation commenced in 1927, and it is now too late to allow the defendant-appellant to make out a new case. If we were to send down this issue, the respondents would be at liberty to prove a local custom of tenancies-at-will, and the case really would start again on new lines. We must, therefore, refuse the request for remand and decide that the appellant is not entitled to plead now that he can have the benefit of Section 83 of the Bombay Land Revenue Code.

7. Apart from the two main grounds of appeal, we have to deal with two minor points. It is admitted that a tenant-at-will, when evicted, has merely the right to remove the materials of any building which he may have put on the leased land, but it is argued that in equity the respondents cannot be permitted to evict the appellant without paying him for the improvement which he has made and recompensating him for the amount he spent on purchase of the land. Mr. Thakor has relied on Ramsden v. Dyson (1866) L.R. 1. H. L. 129 which was relied on and cited in Gujarat Ginning &c.; Company v. Motilal Hirabhai Spinning &c.; Company', (No. 1) (1928) 31 Bom. L.R. 1310, as a correct statement of the English law on the point. His Lordship the Chief Justice wrote as follows (p. 1319) :-

The leading case is Ramsden v. Dyson, which I have already referred to, and there the judgment of Lord Kingsdown, although it is a dissenting judgment, has been constantly cited as being a correct statement of the English law on the point, viz., (p. 170) :- 'If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes. possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation.'

This is the equitable doctrine of acquiescence. The Court will restrain the possessor of the legal right from exercising it if, amongst other things, he has known that the tenant under a mistake as to his legal rights has expended money on the faith of his mistaken belief, and has encouraged him (the tenant) in his expenditure of money, directly or by abstaining from asserting his legal right : per Fry J. in Willmott v. Barber (1880) 15 Ch. D. 96, 105, But in this particular case no facts have been proved which would entitle the appellant to the benefit of this rule. It is not shown that the landlord consented in this case or encouraged the appellant to purchase the lands. It is not shown that he knew of the purchase. We are not told when the purchases were made or under what circumstances. All that the appellant has to rely on is rather a vague evidence that the tenants of this estate in the past had been selling the lands as if they had some interest in them higher than that of a mere tenancy-at-will. But in our opinion this is not enough to justify us in giving the appellant the benefit of this rule of estoppel. In Lala Beni Ram v. Kundan Lall (1899) L.R. 26 I. A. 58, Bom. L.R. 400 cited in the same judgment their Lordships of the Privy Council say (p. 63) :-

In order to raise the equitable estoppel which was enforced against the appellants by both the Appellate Courts below, it was incumbent upon the respondents to shew that the conduct of the owner, whether consisting in abstinence from interfering or in active intervention, was sufficient to justify the legal inference that they had by plain implication contracted that the right of tenancy under which the lessees originally obtained possession of the land should be changed into a perpetual right of occupation...

If there be one point settled in the equity law of England, it is that, in circumstances similar to those of the present case, the mere erection by the tenant of permanent structures upon the land let to him, in the knowledge of and without interference by his lessor, will not suffice to raise the equitable right against the latter which has been affirmed by the Courts below.

It was, therefore, necessary for the appellant to prove something more than the fact that the talukdar knew of his purchase and did not interfere, but as a matter of fact he has not proved even so much.

8. The last point in the appeal concerns the notice given by which the respondent sought to terminate the lease, that it was not valid inasmuch as it was signed by Bhoja alone whereas it should have been signed by all the co-sharers. This point was taken in the trial Court but was not argued in the Court of first appeal. The learned trial Judge referred to Balaji Bhikaji Pinge v. Gopal bin Raghu Kuli I.L.R(1878) 3 Bom. 23. The head-note runs thus :-

In a suit brought by one of two joint khots to recover enhanced rent from a tenant, the notice of enhancement given to the tenant having been signed by the plaintiff alone, and not concurred in by the other joint khot, held by the High Court that the notice was insufficient to render the tenant liable for the increased rent, and that the plaintiff was not entitled to recover.

Westropp C. J. wrote as follows (p. 24):-

We concur with the District Judge, . . .in regarding that notice as insufficient to render the tenant liable for the increased rent. If any one of several tenants-in-common, joint tenants, or co-parceners, who is not acting by consent of the others as manager of an estate, is to be at liberty to enhance rent or eject tenants at his own peculiar pleasure, there manifestly would be no safety for tenants and it would be impossible for them to know how to regulate their conduct, or whom to regard as their landlord.

According to this decision one joint tenant cannot act alone without the consent of the rest. Here the talukdar Bhoja sent a notice on behalf of his co-sharers, and if he was the manager he was entitled as their agent to do any lawful thing which was necessary for the management of the property (s. 188 of the Indian Contract Act). A manager of property must have power to change tenants, and, therefore, if he was the manager, he had authority to issue the notice and that notice was valid and binding. Balaji Bhika's case, therefore, is distinguishable. Bhoja issued the notice on behalf of himself and the other co-sharers and they admitted that he was acting for them by joining in the suits. If the defendant doubted the authority of Bhoja to issue such a notice, he should have asked him to state his authority.

9. These are all the points which have been discussed in this case. We agree with the lower Courts that the defendant was bound by his lease and that, whatever his right before the lease, after the lease he became a tenant-at-will. Apart from this, we hold also that it is not proved that he was a permanent tenant either because he was an occupant after the survey settlement or in consequence of Section 83 of the Bombay Land Revenue Code. We cannot agree that he is entitled to any compensation for improvements. We find that the notice by Bhoja by which he sought to put an end to the tenancy was valid and binding. Lastly, some of the persons in the other suits were parties to the litigation in 1906 in which the same questions arose and they are bound by the decision in that suit that they were only tenants-at-will. The result is that all the appeals must be dismissed with costs.


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