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Kasinath Das and ors. Vs. Nisakar Rout and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 26 of 1959
Judge
Reported inAIR1962Ori164
ActsEvidence Act - Sections 106; Orissa Tenants Protection Act, 1948; Orissa Tenancy Act
AppellantKasinath Das and ors.
RespondentNisakar Rout and ors.
Appellant AdvocateL.K. Dasgupta and ;G.N. Sengupta, Advs.
Respondent AdvocateB.K. Ray, Adv.
DispositionAppeal dismissed
Cases ReferredAkhoy Kumar Gous v. Eradatulla Kazi
Excerpt:
.....his apparent or ostensible authority, which is based not upon direct evidence of the landlord's consent to his having that authority but upon the: thus it may be taken as well established that the defendants were inducted on the lands as bhagchasis by plaintiff no. it was also well recognised that no receipts were granted when theypaid bhag rent and that they had no non-evictable right......the plaintiffs' suit for a declaration that the defendants, who claim to be bhagachasis of the suit lands, have no right, title and interest therein, and that they are mere trespassers, for recovery of possession and mesne profits for the sum of rs. 2493/-from the defendants, on the allegation that the defendants are trespassers, in the circumstances hereinafter stated.2. the facts--few and simple--are these. the suit lands are 13.16 acres in area spread over in different villages. the plaintiffs claim the suit lands as owners in possession. it is said that the defendants encroached upon the said lands, taking advantage of the plaintiffs' absence from the village. the plaintiffs are members of a joint hindu family and are residents of cuttack town; they are absentee landlords in.....
Judgment:

Barman, J.

1. The plaintiffs,--certain town living absentee landlords in respect of their village lands in the country side,--are the appellants in this First Appeal from a decision of the learned Subordinate Judge, Cuttack, whereby he dismissed the plaintiffs' suit for a declaration that the defendants, who claim to be Bhagachasis of the suit lands, have no right, title and interest therein, and that they are mere trespassers, for recovery of possession and mesne profits for the sum of Rs. 2493/-from the defendants, on the allegation that the defendants are trespassers, in the circumstances hereinafter stated.

2. The facts--few and simple--are these. The suit lands are 13.16 acres in area spread over in different villages. The plaintiffs claim the suit lands as owners in possession. It is said that the defendants encroached upon the said lands, taking advantage of the plaintiffs' absence from the village. The plaintiffs are members of a joint Hindu family and are residents of Cuttack Town; they are absentee landlords in respect of the disputed lands. The plaintiffs had kept a servant one Guri Ghadei who is said to have been looking after cultivation of the disputed lands. The defendants 2 to 19 are said to have been engaged labourers on daily wages for harvesting the lands with ploughs and bullocks belonging to the plaintiffs under the supervision of the said Guri Ghadei. In 1952, the said Guri Ghadei died. Thereafter, as the plaintiffs' case is, the defendants 1 and 2 (two influential men of the locality), along with defendants 3 to 19, are said to have unlawfully and forcibly cultivated the suit lands and appropriated the crops without any authority of the plaintiffs.

The defendants asserted their alleged right as Bhagachasis in respect of the disputed lands, although, according to the plaintiffs, there was no relationship of landlord and tenant between the parties. The plaintiffs' case is that they never inducted the defendants as tenants for cultivating the lands on bhag or any other rental system; that therefore no relationship of landlord and tenant as alleged exists; that apparently, after the death of Guri Ghadei and taking advantage of the absence from the village of the plaintiffs as absentee landlords, the defendants took wrongful possession of the disputed lands and appropriated the crops thereof for which they are liable to pay mesne profits to the extent of Rs. 2493/- as claimed with future mesne profits until delivery of possession. The plaintiffs filed the suit on October 2.1, 1955 for reliefs as aforesaid.

3. The defence, taken in the suit, was that defendants 2 to 4, 7, 8, 9, 11 and 19 had no connection with the disputed lands and that they have been unnecessarily impleaded in the suit; that the other defendants are Bhagachasis, in respect of the suit lands, regularly paying Rajbhag to the agent of the plaintiffs; that schedule A, given at the foot of the written statement, shows different portions of the lands in cultivating possession of the defendant Bhagchasis and also the period for which each of the Bhagchasis, is in possession of his portion; that as Bhagchasis they are protected against eviction by the plaintiffs; that the plaintiffs knowing fully the existing law that they will not be able to evict the defendant Bhagchasis, have filed this suit with a false plea that the defendants are mere trespassers. This, in substance, is the defence stand resisting the plaintiff's claim for eviction of the defendants, from the suit lands.

4. It is clear from Schedule A to the written statement that the area of lands held by the defendant-Bhagchasis is only 7.75 Kadis of land of which the said contesting-defendant Bhagchasis claim to be in possession. Thus the contesting defendants do not claim any portion of the suit lands in excess of the said 7.75 Kadis. The plaintiffs, therefore, are entitled to a decree for the remaining 4.41 Kadis, and to that extent the decree of the learned trial court will have to be modified accordingly.

5. Among the issues raised before the trial Court the main issue was-

'Does the relationship of landlord and tenant exist between the plaintiff No. 1 and the defendants NOS. 3 to 19?'

The trial court found that the defendants are Bhagchasis in respect of the suit lands and under-raiyats under the plaintiffs; that the defendants are not liable to be ejected; and accordingly dismissed the plaintiffs' suit.

6. The simple point, for consideration in this appeal, is whether the defendants are Bhagchasis or mere trespassers as alleged.

7. The back-ground in which the village suit lands in the country side were being managed by the plaintiff-landlords, was that the plaintiff No. 1 Kasinath Das is a retired Professor of Ravenshaw College living in Cuttack town. Plaintiff No. 2 Harihar is a major son of plaintiff Kasinath Das & plaintiff no. 3 is a minor son of plaintiff No. 2 Harihar Das represented by his grand father and next friend Kasinath (plaintiff No. 1)--all living as members of the joint family in Cuttack Town as aforesaid. The village suit lands are the plaintiffs' raiyati lands within the ex-estate of Darpan. The plaintiffs being absentee landlords as aforesaid it was the said Guri Ghadei until his death in 1952 who was in charge of management and supervision over the suit lands.

The plaintiffs' knowledge about the cultivation of the village suit lands was confined to the reports of the said Guri Ghadei; that the plaintiffs had in fact no direct knowledge about the cultivation. Apart from the said Guri Ghadei, the plaintiffs had Gumustha and one Tahasildar named Krutibas Mohanty who was alive until the suit was filed and in fact he gave instructions far drafting the plaint; the said Krutibas died sometime in 1955. There, were also others who used to look after the plaintiffs' landed properties in the village, namely one, Krupa Sindhu Naik and one Khatu Samal, who also used to visit the place for supervision of harvest. This, in short, is the picture of the absentee landlords' management of the suit lands in the village, while the landlords themselves were mostly living in Cuttack Town.

8. The question now is whether or not the defendants were inducted as Bhagchasis under the plaintiff-landlords. The defence case is that the defendants were inducted by the said Krutibas Mohanty, while the plaintiffs' stand is that such alleged inducting of the defendants as Bhagchasis under the plaintiffs, if at all, was, in any event, outside the scope Or authority of the plaintiffs' said agent Krutibas Mohanty. Before we come to the legal position, on the point of apparent and actual authority of the agent, let us examine the evidence in this case. (After discussing the oral evidence in paras 9 and 10 the judgment proceeds:)

11. Apart from the oral evidence adduced by the parties, there is no documentary evidence on the point of alleged agency of the said Krutibas Mohanty. In the ultimate analysis of the evidence of the witnesses, discussed above, it is clear that the defendants were paying Rajbhag through the plaintiff's agents.

12. Thus, the question of apparent or ostensible authority of the plaintiffs' agents,--Tahasildar and Gumusta,--in contrast with--the agents' actual authority, on the facts of this case, is the main point involved in this appeal. The authority expressly conferred by a principal upon his agent may, and normally will, be supplemented by an implied authority, which the principal has by implication consented that the agent should have in addition to his express authority. Thus, for example, every agent has implied authority to do whatever is necessary for, or ordinarily incidental to the effective execution of his express authority in the usual way.

In the present case, the question of authority of the plaintiff's agents (Tahasildar and Gumasta) to bind the plaintiffs by the agents' acts or admissions should be decided on particular facts, as in every other case regarding the scope of the authority of the agents to bind the principals. The burden of proof, in the first instance, is upon the landlord to show the precise scope of the authority he had conferred upon his agent as this is a matter peculiarly within his knowledge (Section 106 Evidence Act); if the Tahasildar or Gumasta is held out as having a Only limited authority, the party dealing with him should ascertain the extent of his authority; there is an ordinary presumption of agent's authority to bind the principal.

Here, in the back-ground of the management of the village suit lands by town-living absentee landlords, through their agents in the village,--in the circumstances hereinbefore stated, and as further stated by plaintiff no. 1 (P.W. 1) himself in his evidence, namely, that he was the proprietor of several touzis before the estates were abolished; that he was paying Sadar Jama of Rs. 5,000/-; that he was maintaining only one Tahasildar; that he had about 30 acres of Lakhraj and 100 acres of self-cultivated and raiyati lands; that about 2000 acres of lands were Prajadakhal lands paying cash rents,--it is natural for one to presume that such an absentee landlord had to depend on his Tahasildar, Gumasta and agents for management of the suit lands in the villages.

13. The normal duty of a Tahasildar or a Gumasta is to be in charge of the lands. Here, when the Tahasildar or the Gumasta was inducting the defendants for cultivation of the lands, he was doing so, as it was necessary for or ordinarily incidental to, the effective discharge of his duty as Tahasildar or Gumasta in charge of the lands; the agent was not creating in favour of the defendants any right to the lands by such letting out of the lands on bhag, which the agent had been doing since 15 or 30 years ago, that is to say, prior to the Orissa Tenants' Protection Act. It was however, urged on behalf of the plaintiff, that even so, such bhag tenants became under-raiyats under the Orissa Tenancy Act, and could not be ejected without notice to quit as provided in Section 57(b) of the Act. In my opinion, this is practically no right, because the tenants are still liable to be ejected; merely because they are entitled to notice to quit, does not mean that they had acquired any right to the land by reason of their under-raiyati. At most it is a precarious right which is negligible.

In this context, the plaintiffs relied on a decision of the Patna High Court in Bisweswar Dass v. Sashinath Jha, AIR 1943 Pat 289 where it was held that a Patwari or even a Gomusta, unless he is specially authorised to do so by his proprietor, has no right to inflict a new tenancy on the landlord by recognising or by acceptance of rent; that consequently, the acceptance of rent by the proprietor's patwari in the absence of special authority cannot estop the proprietor from challenging the tenancy. This decision, however, is distinguishable from the facts of the present case, in that, in the Patna case, what the agent was doing was that he was creating a Mukarrari permanent tenancy in respect of the suit lands, whereas, in the present case, as discussed above, for reasons as aforesaid, the Tahasildar was not creating any such right for the defendants as Bhagchasis, whom he had inducted for the purpose of cultivation of the suit lands, as necessary for or ordinarily incidental to the effective execution of his duty,--as an agent in charge of the lands, in the usual way.

Therefore, it follows, that the plaintiffs' Tahasildar or Gumasta, by inducting the defendants as Bhagchasis, was not acting beyond the scope of his authority. In view, of the clear evidence, that Krutibas Mohanty was looking after the plaintiffs' affairs, collecting rents, supervising the cultivation, there arises a normal presumption of agency, for the purpose of inducting the Bhagchasis into the lands for cultivation; hence, an inference can be rightly drawn that the inducting of the defendants as Bhagchasis into the suit lands was within the scope of apparent or ostensible authority of the Tahasildar's agency.

14. Therefore, in view of the settled legal position, it having been admitted, beyond dispute, that Krutibas Mohanty was the landlord's agent, it was for the landlords to show that, the act, which Krutibas, as agent, had done in inducting the defendants into the suit lands for cultivation as bhagchasis, was beyond the scope of his authority. Indeed, getting cultivators for the lands as Bhagchasis is a normal routine work of a Tahasildar. Considered from this aspect, the acceptance of rents by the landlord's agent, who collected the same from the defendants, amounted to recognition by the landlord of the Bhagchasis right set up by the defendants, inasmuch as the landlord was bound by the agent's act of inducting them into the suit lands as Bhagchasis; the landlord failed to show that in doing so, the agent acted beyond the scope of his authority (see Motihari Concern Ltd. v. Lachmiprasad Sah, 35 Ind Cas 81: (AIR 1917 Pat 512); Akhoy Kumar Gous v. Eradatulla Kazi, 64 Ind Cas 883 at p. 884: (AIR 1920 Cal 909 at p. 91.0).

15. I am satisfied, on the evidence in this case, that with the Tahasildar's actual authority, there was his apparent or ostensible authority, which is based not upon direct evidence of the landlord's consent to his having that authority but upon the: fact that the landlord had implied]y 'held out' the Tahsildar as having the authority in question. It is thus seen that the concept of an agent's usual authority is important in ascertaining the extent not merely of the agent's actual authority, but also of the authority which his principal has held him out as possessing. In the present case, there is ample evidence to show that what the Tahasildar did was within the scope of his apparent or ostensible authority.

16. In this view of the case, we hold that the contesting defendants were Bhagchasis under the plaintiffs as claimed and not trespassers as alleged. The decision of the trial court, dismissing the plaintiffs' suit is, therefore, upheld, subject to the modification, as hereinbefore stated, that the contesting defendants having claimed possession as Bhagchasis in respect of 7.75 Kadis only as per schedule to the written statement, the plaintiffs claim, so far as the said 7.75 Kadis of land is concerned, must stand dismissed, and the plaintiffs' suit, with regard to the remaining portion of the lands, namely, 5.41 Kadis,--must accordingly be decreed in favour of the plaintiffs. This appeal is disposed of accordingly with the modifications as aforesaid.

The plaintiff-appellants are to pay the costs of this appeal.

Narasimham, C.J.

17. I agree.

The main question of fact for decision in this appeal is whether the defendants' claim to the Bhagchasis, in respect of the disputed lands, having been inducted thereon by plaintiff No. 1's Gumastha and agent Krutibas Mohanty is believable or else whether the plaintiffs' story that the lands were under the personal cultivation of the plaintiff No. 1 through, his servant Guri Ghadei and other hired labourers should be preferred. Though the plaintiffs' respectability is beyond question, he has no personal knowledge of this fact. As frankly admitted by him in cross examination, his knowledge is based On reports received from Guri Ghadei (since dead) or from such of his co-villagers who used to visit the villages in question. For the reasons fully discussed by my learned brother the evidence of his witnesses on this point was rightly Discarded.

Thus it may be taken as well established that the defendants were inducted on the lands as bhagchasis by plaintiff no. 1's Gumastha and agent Krutibas Mohanty several years ago. The exact date from which the defendants became bhagchasis is not very material, but from the evidence of the defendants which has been rightly believed it appears that this took place, more than 20 years ago.

Mr. Dasgupta thereupon contended, relyingon AIR 1943 Pat 289 that unless expressly authorised by the landlord his Patwari or Gomastha hasno right to inflict a tenancy either by recognitionor acceptance of rent. In considering whetherthe aforesaid decision applies to the facts of thepresent case one should remember that prior tothe passing of the Orissa Tenants protection Act1948, Bhagchasis cultivating the lands of occupancy raiyats had practically no status under thetenancy law then in force. It was also well recognised that no receipts were granted when theypaid bhag rent and that they had no non-evictable right. This right was conferred for the firsttime only by the Orissa Tenants protection Act1948 and has since been continued in force by theOrissa Tenants Relief Act. Hence prior to 1948when the gornastha or the agent of the absenteelandlord or occupancy raiyat allowed some of theresident villagers to cultivate his master's landas bhagchasis he was not creating any new tenancy against the interests of his landlord, nor washe creating any right adverse to that of his landlord. Nobody could, at that time, have, anticipated that the Legislature would step in 1948 andconfer a right of non-evictability on Bhagchasisalso. Hence, the action of Krutibas Mohanty inletting out the disputed lands on bhag basis onbehalf of the plaintiff No. 1 must be held to bewithin the normal functions, of a Gumastha oragent as then understood. If however there wasany special understanding between the plaintiffand Krutibas to the effect that the latter thoughacting as the plaintiff's agent should not let outthe lands to bhagchasis, the burden will be onthe plaintiff to adduce evidence to prove the sameso as to show that the agent's powers were restricted to that extent. But the plaintiff has ledno evidence on this point. Hence the plaintiffs'claim for recovery of possession of the disputedlands was rightly rejected.


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