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Dulichand Mahesri and anr. Vs. Prohlad Chandra and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1945Cal50
AppellantDulichand Mahesri and anr.
RespondentProhlad Chandra and ors.
Cases ReferredIsap Ali v. Satis Chandra Roy
- biswas, j.1. this is an appeal on behalf of the plaintiffs in a suit for ejectment of the defendants from a piece of land in the town of jalpaiguri on service on them of a notice to quit. there were three defendants, but the suit was contested by only two of them, viz., defendants 1 and 8. the defence was three-fold. in the first place it was alleged that the tenancy was a permanent one, secondly the sufficiency of the notice to quit was questioned and lastly the defendants claimed protection from ejectment under section 182, ben. ten. act. the learned munsiff of jalpaiguri who tried the suit in the first instance gave the plaintiffs a decree. on appeal that judgment was reversed by the learned subordinate judge. both the courts agreed in turning down the plea of permanency as well as.....

Biswas, J.

1. This is an appeal on behalf of the plaintiffs in a suit for ejectment of the defendants from a piece of land in the town of Jalpaiguri on service on them of a notice to quit. There were three defendants, but the suit was contested by only two of them, viz., defendants 1 and 8. The defence was three-fold. In the first place it was alleged that the tenancy was a permanent one, secondly the sufficiency of the notice to quit was questioned and lastly the defendants claimed protection from ejectment under Section 182, Ben. Ten. Act. The learned Munsiff of Jalpaiguri who tried the suit in the first instance gave the plaintiffs a decree. On appeal that judgment was reversed by the learned Subordinate Judge. Both the Courts agreed in turning down the plea of permanency as well as that based on the alleged invalidity of the notice to quit. As regards the bar of Section 182, Ben. Ten. Act, it is common case that so far as defendants 1 and 2 are concerned, none of them was a raiyat and they could not consequently avail themselves of this defence. As regards defendant 3, however, the learned Munsiff held that the question did not arise at all in his case, as he had failed to prove that he had acquired any interest in the disputed holding. The learned Subordinate Judge on the other hand, found that defendant 8 was a tenant, and that having regard to the fact that he had acquired a number of raiyati holdings in the same mouza in which the disputed tenancy was situated, the learned Judge held that he was entitled to claim the protection of Section 182. The only point that has been argued in this appeal relates to applicability of this section.

2. A preliminary objection was taken by Mr. Gupta on behalf of the defendants-respondents to the hearing of this appeal under the provisions 8f Section 6 read with Section 3, Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940. Section 3 of this Act provides for a compulsory stay of all suits and proceedings for the ejectment of a non-agricultural tenant for the period of the Act, and Section 6 makes the same provision applicable in the case of suits and proceedings which were pending at the date the Act came into operation. The suit here was instituted on 22nd November 1937 and the judgment of the trial Court was pronounced on 23rd December 1938 and that of the lower appellate Court on 5th March 1940: Thereafter the present appeal to this Court was presented on 16th May 1940. During the pendency of this appeal, the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 came into force. Mr. Gupta argued that the word 'suit' as used in Section 3 or in Section 6 of the Act refers to a suit in any stage, whether original or appellate, just as the word 'proceeding' would include a proceeding in the Court of first instance as well as in the appellate Court. It would, he maintained, be inconsistent to restrict the meaning of the word 'suit' but not of the word 'proceeding'. It was further contended that where legislation affected pending litigation, the rule was that it must be deemed to affect the litigation in whatever stage it might be pending, unless the Legislature expressly provided to the contrary. This particular legislation was obviously made retrospective in its operation by the terms of Section 6 and it followed accordingly that it should hit any proceeding which might be pending at the relevant date in any Court. In support of this principle, reliance was placed on the decision of the Judicial Committee in Mukerji, Official Receiver v. Bamratan Kuar , and on the judgment of the Federal Court in Jagadish Jha v. Aman Khan .

3. The question as to whether the word 'suit' in Section 3 or Section 6, Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, includes an appeal was raised in Jahur Mia v. Abdul Gaffur : AIR1941Cal452 , where I took the view that it does not, but my learned brother Mukherjea J. thought it sufficient merely to hold that the other word in the section 'proceeding' was wide enough to include an appeal. In a later case, viz., the ease in Pran Krishna Mukherjee v. Jnanada Ray : AIR1942Cal47 which was decided by my learned brother Edgley J. and myself, the view I had expressed in the earlier judgment was affirmed by both the members of the Bench. With reference to these (sic) Mr. Gupta pointed out that these were (sic) appeals directed against decrees for ejectment which had been passed against them by the Court below, and it was sufficient to hold that such appeals, which could not obviously be regarded in any case as proceedings for ejectment of the tenants, could not and did not come within the meaning of the words ' suits for ejectment'. Mr. Gupta maintained that the decision as to the meaning of the word 'suit' as laid down in these judgments must be taken with reference to the particular facts which were in dispute in those cases.

4. Speaking for myself, responsible as I was, for the view indicated above I am not prepared to say that the view-point urged by Mr. Gupta does not merit further consideration but it so happens that in a batch of later cases which came up before Edgley J. and myself, which were concerned with landlords' appeals against decrees refusing ejectment, the same interpretation of the word 'suit' was applied and the order for stay of hearing of the appeals which had been made by the lower appellate Court was set aside: vide Howrah Milk Co., Ltd. v. Baksa Sk. Napit Civil Revn. Cases Nos. 1529 to 1629 of 1940. It does not appear that in these later cases the matter was re-argued much less re-argued from the point of view which has now been pressed before me by Mr. Gupta. All the same, sitting singly I think I am bound to give effect to this decision and hold that the word 'suit' must be taken to exclude every kind of appeal, whether it be an appeal by the landlord against a decree refusing ejectment, or an appeal by the tenant against a decree granting ejectment. The preliminary objection must accordingly be overruled.

5. Turning now to the merits of the appeal, the question turns on the findings of the lower appellate Court and on the correct interpretation Of Section 182, Ben. Ten. Act. Dr. Basak contends that Section 182 cannot apply in this case inasmuch as the disputed land was not held by defendant 3 as a homestead. He says that admittedly the tenancy was originally created for the purpose of a shop. It may be that it was used later on for residential purposes, but so far as defendant 3 is concerned his evidence is that he had other dwelling houses in the neighbourhood and consequently it is argued the disputed holding could not be regarded as his homestead within the meaning of Section 182. Reliance was placed by the learned advocate on the case in Purusottam Mahesri v. Panchanan Mazumdar ('26) 13 A.I.R. 1926 Cal. 373: 90 I. C. 805. It is necessary to set out the relevant facts in connexion with this point. It has been found by the Courts below and is, in fact, not disputed by either party that the tenancy, at its inception, was one for the establishment of a shop. It has also been found at the same time that, in point of fact, it has been used in part as a homestead all along. The original tenant was one Earn Prasad Agarwalla. After him the tenancy was held by his son Earn Chandra and then by Earn Chandra's widow Basanti, who is defendant 2 in the ease, and Earn Chandra's mother's sister Dhappa Bewa defendant 1 Basanti being interested to the extent of a four annas share and Dhappa Bewa to the extent of the remaining 12 annas share. The plaintiff's case in the plaint was that defendant 3 Prohlad had purchased the interest of Basanti, and though in the absence of the conveyance the trial Court had found against defendant 3 on the question of his title, the Court of appeal below admitted the conveyance in evidence and found that defendant 3 was a tenant in respect of the disputed holding to the extent of 12 annas share. Defendant 3 is the adoptive son of defendant 1 and it appears that though defendant 3's purchase was made only on 22nd December 1934, he had been actually residing in the disputed homestead from long before. Dr. Basak, however, contends that this is not sufficient to make the disputed holding the homestead of defendant 3 so as to attract the protection of Section 182, Bengal Tenancy Act. He relies mainly on the evidence of defendant 3 to the effect that he had another house about 150 to 200 feet away from the disputed premises where his wife had died. It was only after his wife's death as Dr. Basak said, that the disputed holding could at all be regarded as his homestead.

6. In answer to all this, it is sufficient to point out that I am bound to accept the findings of the learned Subordinate Judge on the question, and those findings, as I read them, have been expressed in unequivocal terms. The learned Judge distinctly points out that the disputed land has all along been used for residential purposes by all the defendants in the suit as also by their predecessors, and it cannot be said that there was no evidence on the record to support this finding. The learned Judge, in fact, refers to the Settlement Khatian and to the plaint in a previous ejectment suit. Reference may also be made to the plaint in the present suit and to the notice to quit which was served by the plaintiff, where it is expressly admitted that at least defendants 1 and 2 were residential tenants. It may be that in one part of his judgment the learned Subordinate Judge says that defendant 3 has proved that he lives at times in the house on the disputed land as well as in a separate house of his. This, in my opinion, is not sufficient to show that the disputed land could not or did not constitute his homestead. The question is mainly one of fact, and if, as a matter of fact, defendant 3 did reside in these premises, even though it may be that he was living elsewhere at times, I think it was open to the Court of fact to conclude that this was his homestead. Dr. Basak sought to raise a point of law in this connection by suggesting that Section 182 contemplated only a single homestead, and that the section was inapplicable where the tenant had more than one homestead. To put such a restricted interpretation on the words in the section would be to defeat its obvious intention. If, in point of fact, a tenant is shown to be residing in more than one homestead, the result would be to deprive him of the protection of this section in the case of any of these homesteads, but that could never have been intended. The tenant may be a raiyat in respect of a number of agricultural holdings, and it is as likely as not that he may have a number of homesteads in the village or villages where these holdings are situated. It would be wrong to say that although he could claim the benefit of Section 182, if he had only one homestead, he would necessarily be deprived of such benefit, if he happened to have more than one homestead. The learned Judge has referred to a case reported in Isap Ali v. Satis Chandra Roy ('22) 65 I. C. 504 (Cal.) in support of the proposition that it is not necessary that the homestead referred to in Section 182 should be the only homestead of the raiyat. Whether the case cited is a direct authority on the point or not, the facts of the case seem to leave the matter in some doubt -- I am inclined to think that if the learned Judges did intend to lay down any such proposition, they could not have been far wrong.

7. Dr. Basak's next point was that it was not shown in this case that the disputed homestead was one from which defendant 3 was actually carrying on agricultural operations in the raiyati holdings which he held in the village. He maintained that the policy of Section 182 was to ensure protection to a cultivating raiyat from ejectment from his homestead in order that his agricultural operations might not be imperilled. In answer to this argument, Mr. Gupta pointed out that even though this is to be supposed to have been the policy of the Act, the Court is called upon to construe the section as it stands, and construing it in that way, all that seems to be postulated by the statute is that there must be some connection between the homestead and the tenant's status as a raiyat. It is one thing, however, to say that there must be some such connection, and quite a different proposition to lay down that in order to get the protection of the section, the tenant must either be a cultivating raiyat himself or be actually carrying on agricultural operations from the homestead in question. The Act nowhere requires that a raiyat must be an actual cultivator, and if a raiyat need not be an actual cultivator, much less need he hold the homestead for the purpose of actual cultivation. The requirements of Section 182 would be satisfied if the homestead was one from which the raiyat might, if necessary, carry on agricultural operations in his raiyati holdings, if and when the occasion arose. I think there is considerable force in Mr. Gupta's point of view. It certainly falls in with the general scheme of the Act, which he is right in pointing out, nowhere requires that a raiyat must be a person actually engaged in cultivating operations. The definition of a raiyat itself shows that a raiyat is primarily a person who has acquired a right to hold lands for the purpose of cultivation, not that he must be a person actually cultivating the land. It also includes successors-in-interest of persons who have acquired such a right. Actual cultivation is, therefore, not the test of the status of a raiyat. It cannot, therefore, be supposed that the legislature intended to make it a sine qua non for the applicability of Section 182 that the homestead must be held by the raiyat for the purpose of actual cultivation. In this particular case, I may add, not a word was put to defendant 3 in cross-examination as to whether or not he was in a position to carry on actual tilling in his agricultural holdings from the disputed homestead. If the plaintiff sought to deny the benefit of Section 182 to defendant 3 such a case should certainly have been put to him. This particular point raised on behalf of the appellant must therefore fail. It is not necessary for me to refer in detail to the various authorities which were cited on one side or the other before me. It is sufficient for me to say that these authorities have been all correctly dealt with by the learned Judge in his judgment under appeal. The result is that in my opinion the appeal fails and must be dismissed with costs. Leave to appeal under Clause 15, Letters Patent, is prayed for and is refused.

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