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District Board Vs. Sarafat Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1941Cal408
AppellantDistrict Board
RespondentSarafat Ali and ors.
Cases ReferredHarihat Banerji v. Ram
Excerpt:
- .....to south on the eastern side of the comilla railway station compound. the case of the plaintiff district board is that these as well as other lands were acquired by the government under the land acquisition act for the assam bengal railway company who constructed a railway approach on a portion of the lands acquired. later on, the railway company relinquished the approach road as well as the side lands which included the plots in suit in favour of the government and the government, in their turn, made over these lands to the district board of comilla under section 74, local self-government act. the plaintiff board has since then been exercising the right of control and administration over these properties as laid down in the act. the disputed lands, it is said, consist mainly of low.....
Judgment:

B.K. Mukherjea, J.

1. The plaintiff is the appellant before me in these three appeals which arise out of three analogous actions in ejectment. The facts lie within a short compass and may be stated as follows. The subject-matter of the three suits are three strips of land lying to the contiguous east of a road known as Railway Approach Road which itself runs north to south on the eastern side of the Comilla Railway Station compound. The case of the plaintiff District Board is that these as well as other lands were acquired by the Government under the Land Acquisition Act for the Assam Bengal Railway Company who constructed a railway approach on a portion of the lands acquired. Later on, the Railway Company relinquished the approach road as well as the side lands which included the plots in suit in favour of the Government and the Government, in their turn, made over these lands to the District Board of Comilla under Section 74, Local Self-Government Act. The plaintiff Board has since then been exercising the right of control and administration over these properties as laid down in the Act. The disputed lands, it is said, consist mainly of low lands and ditches with some high lands here and there and in 1912 defendant 1 of Suits Nos. 327 and 328 on his own behalf as well as on behalf of his father took lease of the plots which are the subject-matter of these two suits for one year only promising to pay rents at the rate of Rs. 7 and Rs. 30 per year respectively. Likewise, the predecessor of defendants in Suit No. 359 took lease of the lands in that suit at an annual rental of Rs. 5. The tenants were all holding over after the expiry of this period. The plaintiff desiring to have the land for their own use served upon them notices to quit and as they did not vacate the lands in spite of the notices these suits were instituted.

2. The defence in all these three suits was practically the same. It was contended inter alia that the disputed lands were neither acquired by the Government nor were they relinquished by the Assam Bengal Railway Company to the Government and transferred subsequently by the latter to the plain-tiff. The plaintiff, it was said, had no title to the property and no right to institute these suits. The defendants denied that they were tenants under the plaintiff and their specific case was that the lands belonged to the Maharaja of Tippera whose tenants the defendants were and they had acquired occupancy rights in the lands in dispute by cultivating and possessing them for over 12 years. The learned Munsif who tried the suits came to the conclusion that with the exception of a small strip of land to the south, the rest of the disputed lands were included in the acquisition plan and they were, in fact, relinquished by the Assam Bengal Railway Company in favour of the Government and the Government subsequently made them over to the plaintiff District Board under Section 74, Local Self-Government Act. In the opinion of the Munsif, the plaintiff was entitled to hold the property as agent of the Government and in that capacity they had the right to institute the suits. The Munsif further found that the lands in suit were for the first time let out to the defendants or their predecessors by the plaintiff after the latter got control over them under S.74, Local Self-Government Act, and it was the plaintiff who inducted the defendants into these lands. The trial Court found however that the defendants were agricultural tenants who had acquired occupancy rights in the lands in suit and in this view of the case the suits were dismissed.

3. On appeal, the learned Subordinate Judge concurred with the trial Court in holding that the tenancies came into existence after the plaintiff got these properties under Section 74, Local Self-Government Act, and he held also that it was the plaintiff by whom the defendants were let into possession. The Subordinate Judge held further disagreeing with the Munsif, that the tenancies were not for agricultural purposes. He however dismissed the suits on the ground that the suits for ejectment were not maintainable at the instance of the plaintiff. In the opinion of the Subordinate Judge, a person who is not the owner is not entitled to institute a suit for eviction, and as the plaintiff on its own showing was the agent of the Government, the proper person to sue was the Government and not the District Board. It is the propriety of this decision that has been challenged before me in second appeal. It cannot be disputed that a person suing another for khas possession must show a better title in him than the defendant, and he must establish that he has the present right to get possession of the property. It cannot be said however that none but an owner can maintain suit for ejectment. Dr. Sen Gupta who appears for the appellant argues that the control and the administration which the District Board obtained under Section 74, Local Self-Government Act, gave them sufficient right to the present possession of the property so as to entitle them to institute and maintain these suits for eviction even though the proprietary right remained vested in the Crown, Dr. Pal, on the other hand, contends that under Section 74, Local Self Government Act, the property can be placed under the control and administration of the District Board only for purposes of the Act, and it was not within the competence of the Board to let out these lands to the tenants.

4. In my opinion, these questions are purely academic. Having regard to the findings arrived at in the present case, we may take it that the Government did not part with its ownership when it made over the property to the District Board under Section 74, Local Self-Government Act. The Board however got possession of the lands and a right to possess the same subject to the arrangement they had entered into with the Government. According to the findings of the Courts be-low, it was the plaintiff who let out the lands to the defendants and the defendants got possession of the lands from the lessors. Both the conditions necessary to raise a case of estoppel, namely, possession and permission, are present in this case, and in my opinion, the defendants are not entitled to dispute the title of the lessor without first surrendering their possession. The questions which Dr. Pal has raised would have been material if it was a suit to evict a trespasser on establishment of the plaintiff's title. Once a complete relationship of landlord and tenant is established, the rule of estoppel, in my opinion, comes into operation and prevents the tenants from denying the authority and title which they admitted to rest in the landlord who inducted them into the possession of these lands. Dr. Pal argues that the rule of estoppel cannot be invoked in the present case as the plaintiff Board purported to have granted the leases only as an agent of the Government. The notice to quit served upon the defendants shows that the plaintiff acted in that capacity and this is also clear from the tenor of the plaint. I must say that a great deal of confusion has been caused by the somewhat loose way in which the expression 'agent' has been used by the plaintiff. The suits were undoubtedly instituted by the plaintiff in their own capacity as having got the right to possession under Section 74, Local Self-Government Act. The plaint sets out the facts relating to the acquisition of the lands by the Government for the Assam Bengal Railway Company, the relinquishment of these lands by the Railway Company in favour of the Government, and the subsequent transfer by the Government to the District Board under Section 74, Local Self. Government Act. In para. 3 of the plaint it is stated as follows:

The plaintiff Board took over and has been exercising the right of control and administration over the aforesaid land and, as such the plaintiff Board is holding the property as agent of the Secretary of State for India in Council.

5. The plaint then goes on to say that the Board was in khas possession of the lands in suit when the defendants approached them and prayed for settlement and they were given leases for a period of one year only. It seems to me that the statement in para. (3) of the plaint on which reliance has been placed by Dr. Pal was a mere description of plaintiff's title which it thought it had acquired under Section 74, Local Self-Government Act. It does not mean that it had let out the lands as an agent of the Government. It conceived its position to be that of a statutory agent under Section 74, Local Self Government Act, which carried with it the right to possess the lands and to let them out to others on temporary leases. Whether that is a right view or not, the defendants, as I have already said, having come on the lands with the express permission of the plaintiff are not entitled to dispute its title. There is no doubt however that the plaintiff let out the lands to the defendants in the exercise of its own rights and has instituted these suits in its own behalf to recover possession of the lands for itself.

6. The difficulty, however, in my opinion, is created by the notice to quit that was served upon the defendants. The description of the notice giver as shown at the commencement of the document shows clearly that the Chairman of the District Board was purporting to give that notice on behalf of the Secretary of State for India in Council. Dr. Sen Gupta has contended before me that this may be a defect in the description of the notice- giver, but if we look to the contents of the notice it would be clear that the District Board was not purporting to act on behalf of the Government, as the tenants were directed to deliver up possession to the District Board and not to the Government. It is true, as was laid down by their Lordships of the Judicial Committee in Harihat Banerji v. Ram shahi Roy ('18) 5 AIR 1918 PC 102, that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law, and they are to be construed liberally and not with a desire to find faults in them which would render them defective. In that case, the defect was in the description of the area of the tenancy, and it was held that it could not mislead the tenants as they must be presumed to be conversant with the facts. I do not think that I would be justified in extending this principle to the facts of the present case. If the plaintiff Board in their own capacity as landlords let out the lands to the defendants, they must qua landlords serve notice on them to determine the tenancy. From the description given in the notice, it is clear that it is not the District Board but the Government who was giving the notice and the contents also suggest that the tenants were directed to deliver possession of the lands to the District Board as agents of the Government. In my opinion therefore there was a defect in the notices which is fatal to the plaintiff's suits for: eviction.

7. The result, therefore, is that though I agree with the lower appellate Court in holding that the defendants' tenancies were non-agricultural tenancies which came into existence subsequent to 1899 when the District Board got control and administration of these properties under S.74, Local Self-Government Act, and although I am of the opinion that the defendants have been inducted into the lands by the plaintiff Board and they are not competent to dispute their title whatever it might be, I hold that the plaintiff cannot succeed in these suits unless notices are served upon the defendants by the plaintiff Board in their capacity as landlords in regard to these lands. I do not agree with the lower appellate Court that the plaintiff Board are not competent to maintain these suits. The result is that these appeals are dismissed, but having regard to the facts of these cases, I direct that each party shall bear his own costs throughout. The cross-objections are dismissed without costs.


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