1. In the two suits from out of which both these appeals arise Orient Paper Mills Limited is the plaintiff. The defendant in each case is different.
2. Second Appeal No. 148 of 1953 arises out of Title Suit No. 8 of 1949, where the defendant is one Anadi Ghosh. Second Appeal No. 493 of 1951 arises out of Title Suit No. 193 of 1949 where the defendants is one Sitaram Agarwala. In the two suits the plaintiff relies upon the same document, a registered lease-deed dated 10-4-47,
3. Neither the two suits nor the two appeals before the first appellate Courts were heard to-gether. But this Court by an order dated 24-2-1955 directed both the appeals to be heard together and this judgment of ours will cover both the second appeals.
4. The registered lease-deed on which the plaintiff bases his title in both the suits appertains to Holding No, 24 of mouza Khetrajpur with an area 3.61. Each of the suits are for declaration of title and for recovery of possession in respect of 19 of plot No. 250 and 20 of plot No. 227 of the Hamid Settlement of Sambalpur of the year 1925 recorded in the name of deity Ramchandra Mohaprabhu through marfatdar Bakaram. The plaintiff traces his title in the following manner in both the suits:
Bakaram executed a deed of trust in favour of 5 others and himself on 21-1-45 and all these six trustees executed a deed of surrender dated 5-3-47 in favour of one Pravakar Supakar, the Lambardar Gountia, for the benefit of the deity. The deed of surrender is in respect of the aforesaid, ryoti holding No. 24. After the surrender; the Lambardar-Gtountia executed a registered lease deed In favour of the plaintiff on 10-4-47. The plaintiff alleges in both the suits that the Lambardar-Gountia had delivered possession to the plaintiff; but as his possession has been disturbed he has sued for delivery of possession.
5. The common defence in both the suits was that there was no surrender by the deity and re-settlement in favour of the plaintiff as alleged in the plaint. The defendant in each case traces his right from one Raghubar Das who was the real Mahant and who having surrendered the suit lands in favour of the Lambardar-Gountia, the latter leased out the same in favour of the defendants. The defendants also denied delivery, of possession.
6. The suits were tried by different Courts. T. S. No. 93 of 1949 was tried by Sri B. K. Das, Munsif of Sambalpur, while T. A. No. 8/49 was tried by Sri B. Misra, Addl. Subordinate Judge of Sambalpur. The appeals were heard by different Judges also. In each the suits, the Court had negatived the contention bf the defendants that Raghubar was ever the real Mahant. They had also further held that there was no lease in favour of the defendants by the Labardar-Gountia.
But the Munsif dismissed the plaintiffs suit on two main grounds: (i) that the lease in favour of the plaintiff being for non-agricultural purposes is invalid as being hit by the provisions of Section 107, Transfer of Property Act, which governs the lease as it was not executed by both parties, i.e., the lessor and the lessee; and (ii) that the plaintiff had not been able to prove delivery of possession in respect of the suit lands.
The learned Subordinate Judge in T. S. No. aof 1949, having completely ignored this aspectof the case, decreed the plaintiff's suit. Thedecrees, strangely in both the suits even thoughinconsistent with each other, were confirmed Inappeal. So in S. A. 493/51, arising out of T. S.No. 83/49, the plaintiff Orient Paper Mills Limitedis the appellant, while in S. A. 148/53, arisingout of T. S. No. 8/49, Anadi Ghadi, the defendant,is the appellant.
7. Both the appeals were heard by us on a previous occasion when We found that the trial' in each had been vitiated and the parties had been seriously prejudiced on account- of absence of two important issues. We, therefore, keeping the records in both the second appeals in our file, sent back the cases to the trial Courts for giving us findings in respect of two additional issues framed by us by our order dated 6-9-55. The two issues are as follows:--
'1. Is the land appertaining to Holding No. 24 an agricultural land; and is the registered lease deed executed in favour of the plaintiff on 10-4-47 for agricultural or non-agricultural purpose?
2. Did the Lambardar-Gountia deliver possession to the plaintiff in respect of the entire leasehold land covered by the registered lease deed dated 10-4-47 or any portion thereof including the disputed land?'
The Courts in each gave the parties full opportunities to adduce further evidence and have returned the findings in respect of each of the Issues. Even at this stage the findings are not exactly the same. While both the trial Courts have given the common finding that the land appertaining to Holding No. 24 is agriculturalland and that in respect of the disputed land there was no actual delivery of possession, they have given different findings on the question whether the lease in favour of the plaintiff dated 10-4-47 is agricultural or non-agricultural.
The Munsif who tried T. S. No. 93/49 has found the lease to be for non-agricultural purposes while the Subordinate Judge who tried T. S. No. 8/49 found the lease to be for agricultural purposes.
8. The finding that Holding No. 24 is an agricultural holding is based upon admission and Is not challenged before us as it is not possible to challenge. The holding has been recorded as a ryoti holding in the settlement records of the year 1925 and the lands appertaining to the holding which have been divided into several plots are mostly paddy lands of different varieties and classes.
But the more important position that remains to be determined is whether the lease, which is the basis of the plaintiff's claim, is for agricultural or non-agricultural purposes. There is no dispute 'over the proposition of law that if the recitals in the lease itself and the terms thereof make out non-agricultural purposes and are free from all ambiguity, the only guide for determination of the nature of the lease would be the lease-deed Itself.
But if the terms are not decisive and free from ambiguity, extraneous evidence will be admissible for the purpose of determining the nature of the lease. It is equally settled that it is the primary purpose, for which the, lease has been granted, which will determine its nature. Any subsidiary or ancillary purpose certainly cannot be the guiding factor. The recitals regarding the purpose run to the effect 'the lessee will have a garden construct a house and dig a well and a tank. He will plane trees and cultivate crops'. To me the primary purpose of the lease does not appear unambiguously from these recitals alone. The primary purpose may be residential while planting trees or cultivating crops are merely ancillary. But it is equally possible that the primary purpose is planting of trees and cultivaing of crops. By reference, to the other part of the lease itself we feel convinced that the purpose is bound to be non-agricultural.
The lessee is the Orient Paper Mills Limited, Its function being manufacture of paper having its factory at Brajarajnagar. It is admittedly a big concern. It appears absurd on the very face of it that this limited company, manufacturer of papers, will be taking this small area of 3-61 acres for growing paddy and planting trees, the lands being situate at a distance of nearly 8 to 10 miles off from the place where its factory is situate.
Even if it is permissible to look to the extraneous evidence, it is clear from the position that the lessee is to pay Rs. 365/- per year to the deity whose trustees had surrendered the ryoti holding in favour of the Lambardar-Gountia, who, in his turn, executed the lease-deed in favour of the plaintiff. This is a strong circumstance against the contention that the lease could be for agricultural purpose. No agricultural produce from out of an area of 3-61 acres in Sambalpur can give a gross profit of Rs. 365/_ per year.
Further it appears in evidence that in fact fn 1948-49 the plaintiff constructed buildings on the lands demised in its favour for the residential quarters of the officers. We, therefore, acceptthe finding of the Munsif in T. S. No. 93/49 and reject the finding of the Subordinate Judge in the other suit, and conclude that the lease in question is for non-agricultural purposes.
9. Mr. B. K. Pal on behalf of the plaintiff, advances further contentions that if originally the holding was agricultural, a subsequent lease for non-agricultural purpose will not take it out of the operation of the Tenancy Act and the lease cannot be governed by the provisions of the Transfer of Property Act. In support of his argument, he relies upon a Bench decision of this Court in the case of Sri Gopai Jew Thakur v. Mahajan Jagannath Das. Second Appeal No. 416 of 1952 (A) (unreported) where I had followed, with great respect, the Judgment of Maclean, C. J. in the case of Babu Ram Roy v. Mahendra Nath Samant, 8 Cal WN 454 (B). This case has been indeed a leading case on the subject and was followed subsequently by Mookherji and Carnduff JJ. in the case of Abdul Karim v. Abdul Rahman. 15 Cal LJ 672 (C) and has been consistently followed by our High Court. But the case is clearly distinguishable.
In that series of cases the original holding was an agricultural holding governed by the provisions of the Tenancy Act. The tenant in respect of the holding sub-let only a small portion of it for non-agricultural purpose. It was held that the sub-lease and the sub-tenant would be governed by the provisions of the Tenancy Act in spite of the position that the sub-lease was for non-agricultural purpose, otherwise, as it was laid down by Maclean C. J., it would lead to an -anomalous position that while the original tenant will be governed by the Tenancy Act the subtenant in respect of a portion of the holding will be governed by the Transfer of Property Act.
This principle of anomaly and inconsistency was the basis of those series of cases, But the principle has no application to the present case inasmuch as the admitted position . is that the original ryot in respect of the Holding No. 24 surrendered the entire ryoti holding in favour of the lambardar-Gountia,
Thus there was a termination of the ryoti interest and cessation of the ryoti holding. Thereafter the lambardar-Gounlia has leased Out the entire lands which, were formerly the subject-matter of the entire holding in favour of the present plaintiff. Inasmuch as after the termination of the prior ryoti right when the Gountia-landlord executed a fresh lease in favour of the plaintiff for non-agricultural purposes in respect of the entire lands, the subsequent tenancy, in our opinion, will be governed by the provisions of the Transfer of Property Act as between the Gountia and the plaintiff (the lessee).
10. The position that now arises is whether the lease in favour of the plaintiff dated 104-47 is a valid lease in accordance with the provisions of Section 107, Transfer of Property Act. It has not been executed by, both parties, the lessor and the lessee. Clearly therefore it is invalid under the provisions of the said section. It would be pertinent to quote the entire Section 107 at this stage:
'A lease of immoveable property from year to year or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered Instrument.
All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.
Provided that the State Government, from time to time, by notification in the official gazette direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases may be made by unregistered instrument or by oral agreement without delivery of possession.'
The lease in favour of the plaintiff Orient Paper Mills Limited, on the basis of which the present suits for ejectment have been brought, having been thrown off as inoperative under the provisions of Section 107, the plaintiff is bound to be non-suited in each of the suits.
It is indisputable that in a suit for ejectment the plaintiff is to stand or fall on the basis of his own title. It does not matter if the defendant has not been able to prove his alleged interest or title and the defendant is a mere trespasser.
11. Mr. Pal however strongly relies upon a decision of their Lordships of the Supreme Court in the case of Ram Kumar v. Jagadish Chandra, AIR 1952 SC 23 (D). He contends that even though the lease-deed is thrown off, When the Gountia had accepted rental from the Plaintiff and recognised the plaintiff as tenant, the tenancy rights are created on the basis of which the suits for ejectment against the trespassers will be maintainable in law.
It is to be clarified that mere acceptance of rental by the landlord cannot create tenancy under the provisions of the Transfer of Property Act. There are only two methods contemplated under the provisions of Section 107 for the creation of a tenancy right -- either by a registered document in the case of leases of immoveable property from year to year, or for a term exceeding one year or reserving a yearly rent, or by delivery of possession accompanied by oral agreement in the case of other leases of immoveable property.
There is no other third method. Delivery of possession is therefore essential for the purpose of creating tenancy rights in other kinds of leases in the absence of a registered document in accordance with the provisions of Section 107. Let us now turn to the aforesaid decision Of late Mr. Justice B. K. Mukherjea of the Supreme Court as he then was. There the defendant executed a registered Kabuliyat in favour of the receiver who was in charge of the plaintiff's estate by which he purported to take a settlement of the land in suit for building purposes for a period of 10 years at an annual rent.
The kabuliyat was thrown out as being inoperative as it was not signsd by both parties; but nevertheless the tenancy was an admitted fact, the defendant was admittedly in possession of the lease-hold property and there was acceptance of rent. Their Lordships therefore came to the conclusion that it was a case of implied tenancy and would be governed by the presumption raised under the provision of Section 106 of the Transfer of Property Act.
As the lease was not for agricultural or manufacturing purposes, in the absence Of anything to the contrary it would be deemed to be a lease from month to month. The striking distinguishing feature in the present case is that there wasno delivery of possession in respect of the lands in dispute as we will discuss immediately after.-Indeed in the present two suits if the delivery of possession was an accepted position or proved by the plaintiff in addition to the acceptance of rent then Mr. Pal could fall back upon the provisions of Section 106 and thereby successfully contend before us that in any view the plaintiff would be deemed to be monthly tenant having the right of ejecting the defendant in each suit as he (the defendant) was a mere trespasser.
But the only great difficulty in his way is that delivery of possession has not been proved in the present suits. The Munsif has given us a definite and categorical finding that even though the plaintiff had taken delivery of possession in respect of other lands he had not taken delivery of possession in respect of the lands and house possessed by the defendant. The Subordinate Judge in the other suit has found that the defendant has got his house on the disputed land ever since 1940-41 and there was merely a symbolical possession delivered in respect of the disputed lands and house.
For finding delivery of symbolical possession he relies upon the evidence that at the time when the lessor delivered possession to the lessee in respect of the other lands in the holding, the lessor's man went round the house in occupation of the defendant and asked him to vacate. In our opinion, this is not delivery of possession in respect of the disputed land in favour of the 'essee as contemplated under Section 107 of the Transfer of Property Act when the lands are in possession of a trespasser.
We are aware of the position that delivery of possession, as used in Section 107, T. P. Act, includes constructive possession also when the lessor is in possession of the land through his mortgagee or his tenant and they are attorned to the lessee; but if the plaintiff is not in possession either actually or constructively and the land is in possession of a trespasser asserting adverse find independent right, actual delivery of possession is compulsory in order to satisfy the conditions of Section 107, T, P. Act.
We are definitely of the view, therefore, that there being a great lacuna regarding delivery of possession in favour of the plaintiff, no title is created in his favour, and, as such, the plaintiff himself is a trespasser (?) and is not competent to bring a suit for ejectment even as against the defendant who is a trespasser.
12. Mr. Pal has cited a few other decisions before us to show that even though at the time of the lease, the lease-hold was in possession of a trespasser, the lessee is competent to bring a suit for ejectment. This argument begs the question. There is no dispute over the position that if there is a completed registered lease in accordance with the provisions of Section 107, T. P, Act creating tenancy rights in favour of the lessee he will be entitled to evict the trespasser. But if in a case where delivery of possession is essential for the purpose of completing the lease, as the registered lease will be thrown off as inoperative, he cannot be termed as a lessee having tenancy rights under Section 107 of the Transfer of Property Act to evict a stranger trespasser. He has no right on account of the great lacuna. This is an essential feature.
13. Mr. Pal further contends that when it is proved and found that there was delivery of possession in favour of the plaintiff in respect ofsubstantial portion of the lease-hold, the plaintiff has completed his right in spite of the fact that there was no delivery in respect of the disputed lands and houses in the possession of the defendants.
The portion in possession of each of the defendants is not negligible. In the present suit We are concerned how far the plaintiff has completed his tenancy rights in respect of the disputed lands only and not in respect of other lands. When the fact remains that there was no delivery In respect of these houses in possession of the defendants, it cannot be said that the Plaintiff has tenancy rights pertinently in respect of the disputed lands,
14. Under these circumstances, therefore, Second Appeal No. 493 of 1951, brought by the Orient Paper Mills Limited is dismissed and the decrees and judgments of the Courts below are confirmed; Second Appeal No. 148 of 1953 brought by Anadi Ghosh (defendant) is allowed and the Judgments and decrees of the Courts below are set aside. Each of the suits brought by the plaintiff is dismissed, and the defendant in each of the suits is entitled to his costs throughout.
15. I agree.