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Judoonath Ghose Vs. Raniganj Coal Association Limited - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Judge
Reported in(1892)ILR19Cal489
AppellantJudoonath Ghose
RespondentRaniganj Coal Association Limited
Cases ReferredCourt Mackenzie v. Haji Syed Mahomed Ali Khan I.L.R.
Excerpt:
lease - building lease not within purview of bengal tenancy act--coal depot, lease for, not agricultural or horticultural within meaning of bengal tenancy act--bengal tenancy act (viii of 1885), sections 3, 4 and 5--limitation act (xv of 1877), schedule ii, article 116. - .....sundari dasi v. bibi umdatannisa 9 b.l.r. 101 where it was held that a suit for enhancement of rent of land covered with buildings would not lie in the revenue court under act x of 1859. act viii (b.c.) of 1869 was but a re-enactment of the provisions of act x of 1859 with this difference that the jurisdiction which under act x of 1859 had been vested in the collector was transferred to the ordinary civil courts. and we observe that in the case of judoonath ghose v. schcene kilburn and company i.l.r. 9 cal. 671 which has already been referred to, it was held that, in respect of a dur-maurasi-mocurari lease of land which was not let for agricultural purposes, the provisions of the rent act [viii (b.c.) of 1869] had no application, and that the lessee could not, under section 20 of.....
Judgment:

Ghose, J.

1. This appeal arises out of a suit for rent for six years, that is to say, from Jeyt 1290 to Bysack 1296, alleged to be due to the plaintiff under a lease dated the 25th September 1875. The defendants are the Raniganj Coal Company, Limited, and the kabuliyat which is produced by the plaintiff in support of his claim for rent was executed by Messrs. Schcene, Kilburn and Company, as the managing agents on behalf of the Raniganj Coal Company.

2. In their written statement the Raniganj Coal Company pleaded that no relationship of landlord and tenant existed between the parties; that the defendants had relinquished the leasehold by notice served upon the plaintiff; and that since then the plaintiff had possession of the lands comprised in the lease. They also pleaded that the plaintiff's claim was barred by limitation.

3. The Subordinate Judge gave a decree to the plaintiff, being of opinion that he was entitled to maintain the action as framed; that there was no acceptance by him of the so-called relinquishment; that it was not proved that the plaintiff had any possession of the lands since the lease to the defendants; that the lands demised to the defendants were not agricultural lands, so as to come within the purview of the Bengal Tenancy Act; and that, therefore, the three years' limitation, provided by Article 2 of the 3rd schedule annexed to that Act, did not apply, and that under Article 116 of the Indian Limitation Act the plaintiff was entitled to claim rent for six years.

4. It will be observed upon the judgment of the Subordinate Judge that apparently there was no issue between the parties whether the relationship of landlord and tenant existed between them. No doubt one of the issues that were originally framed by the Subordinate Judge was to that effect, but this was not one of those issues upon which that officer recorded his judgment. The issues which were discussed by him would seem to us to be the right issues which arose between the parties upon the pleadings. The defendants in their written statement did no doubt allege in the sixth paragraph that the relationship of landlord and tenant did not exist between the parties, but that was an allegation which, we think, was clearly based upon the ground that the defendants had relinquished the leasehold and the plaintiff had taken possession since the relinquishment. And that was the way in which the Subordinate Judge dealt with the case, apparently, with the consent of both the parties.

5. On appeal, however, to the District Judge, the question was raised by the learned Counsel, who then appeared for the defendants, that the relationship of landlord and tenant did not exist between the parties, because under Section 42 of Act X of 1866 (an Act for the incorporation, regulation, and winding up of Trading Companies and other Associations), the lease, before it could be a binding transaction, should have been under the common seal of the company. This contention was not raised in the Court of First Instance at the time of argument, and we do not think it was open to the defendants to raise it in appeal. We think further that the Judge has rightly held that the contention could not be supported. In order to make it good it must be shown, as observed by the Judge, that under the law in this country the lease was required to be in writing, and that under the English law such a document must be under seal. The lease was, as has already been mentioned, granted in the year 1875, long before the Transfer of Property Act came into operation; and whatever might be the true construction that should be put upon Section 107 of that Act, we think that, before that Act came into operation, a lease, or at any rate, the acceptance of a lease by the tenant was not required to be in writing: it might have been made without any writing, and we do not think that the English law, which requires a lease for a term exceeding three years to be in writing and under seal, applies to a transaction like this in this country.

6. But, as already observed, the true contention that was raised by the defendants was that they had relinquished the leasehold and the plaintiff had taken possession, and therefore they were not liable for rent. So far as the question of relinquishment is concerned, we think that both the Courts are right in holding that the lease with which we are concerned could not in law have been relinquished in the manner alleged by the defendant. It was a permanent lease, and it was not open to the defendants to give it up at their pleasure; and there is nothing to show, as the Lower Appellate Court has found, that the plaintiff accepted the relinquishment or took possession of the property after the alleged relinquishment. That being so, it seems to be obvious that the plaintiff' is entitled to recover rent from the defendant under the lease in question.

7. The only other question raised in this case is one of limitation. It was contended before us by the learned Counsel for the defendant-appellant that the land demised to the Raniganj Coal Company was land which came within the purview of the Bengal Tenancy Act, and therefore under Article 3 of the second schedule, read with Section 184 of that Act, the plaintiff could not recover rent for a longer period than three years.

8. In this connection the question we have first to apply ourselves to is, what is the character of the lease that was granted by the plaintiff to the defendants? This lease came before a Division Bench of this Court for consideration in the case of Judoonath Ghose v. Schcene Kilburn and Company I.L.R. 9 Cal. 671 and this Court held that this was not a lease of agricultural land; and Mr. Justice FIELD, who was one of the learned Judges who decided that case, held that as the lease was not a lease of agricultural land, the provisions of the Rent Act [VIII. B.C. of 1869] had no application. The lease in question was a dur-maurasi dur-mocuran lease at an annual rent of Rs. 625; and it recites that the lessor had obtained from his landlord a maurasi-mocurari settlement; it states that a dur-maurasi-mocurari lease is granted to the lessee; and it then provides as follows: 'being vested with your (lessor's) right, we shall continue to hold and enjoy the said land for ever down to our heirs or representatives from generation to generation on payment of rent payable for the said land either directly or through tenants by raising buildings, digging tanks, planting gardens, establishing coal depots, or by using it in any other way we choose, to which you or any of your heirs shall not be competent to raise any objection; and even if you make any, it shall be inadmissible. And the rent of the said land shall never to subject to enhancement. Should you or your heirs claim any enhancement it shall be rejected as null and void.' Later on there is a covenant to the effect that no plea as to non-payment of rent should be allowed to be raised by the lessee on account of drought or inundation, or upon the ground of the land lying waste or being deserted, or from any other cause. And at the end of the lease the following passage occurs: 'you have granted us a dur-maurasi-mocurari pottah in respect of the said land on receiving due satisfaction--Rs. 800 as bonus and Rs. 350 as the price of the tanks, trees, etc., and other fixtures on the land as shown in the schedule below. As regards the tenants residing on the said land, we shall turn them out by paying the price of their houses, buildings, trees, etc., appurtenances from our own pockets.' The Judge of the Court below, we observe, refused to consider the terms of the lease on the ground that the defendants had not produced their pottah; but upon a consideration of the oral evidence adduced, and upon the admission of the defendants, he held, as a matter of fact, that the land was taken with the object of establishing a coal depot upon it. Section 5 of the Bengal Tenancy Act, supposing it is applicable to this case, lays down in the fourth paragraph that, 'in determining whether a tenant is a tenure-holder or a raiyat, the Court shall have regard to {a) local custom, and (b) the purpose for which the right of tenancy was originally acquired;' and this is what the law was before the Bengal Tenancy Act came into operation; for it was always held, whenever the question arose whether the tenant was a middleman or a raiyat, that it must be enquired into and determined what was the character of the tenure in its very inception, i.e., at the time when the grant was made.

9. We might here say that the plaintiff having produced the kabuliyat executed by the defendants in support of his claim of rent, the defendants are entitled to ask us to determine what, upon the terms of the lease itself, is the true character of the transaction; and looking at the terms of the lease, it seems to us that it could not have been granted for agricultural or horticultural purposes, but that it was a lease granted for building purposes and for the establishment of a coal depot. No doubt there are terms in the instrument which are often found in permanent leases of agricultural properties, viz., as to the lessee being entitled to hold the land either directly, or through tenants, by raising buildings, digging tanks, planting gardens, establishing coal depots, or by using it in any other way he chose; and as to the lessee not being entitled to plead drought, or inundation, and so forth. This is the common form which is generally used in all permanent leases, but we do not think that we should be justified in concluding from this that it was the intention of the parties that the lease should be for any purpose other than that for which it really purports to be, i.e., a lease of the land for use as a coal depot. The concluding portion of the lease makes the matter, we think, abundantly clear; for it provides that the lessees shall turn out the tenants who were then residing upon the land by paying the price of the houses and buildings. The land no doubt appertained to a revenue-paying estate; but it was not land that was being used for agricultural purposes--it was being used for habitation by certain tenants. That being so, and regard being had to the finding that has been come to by the learned District Judge, it seems to us that the land was not leased to the defendants for agricultural or horticultural purposes, but for building purposes and for the establishment of a coal depot.

10. That being the character of the lease with which we are concerned, the next question which we have to consider is, whether the land comprised in the lease is land which comes within the purview of the Bengal Tenancy Act. If the question had arisen either under Act X of 1859 or under Act VIII (B.C.) of 1869, there could be no doubt, regard being had to the whole current of rulings upon the subject, that the lands covered by this lease could not come within the Rent Act. In the case of Khalat Chunder Ghose v. William Minto 1 Ind. Jur. N.S. 426 it was held by Phear, J., that the word 'land' occurring in Act X of 1859 was 'merely that which the ordinary raiyats or occupiers of the soil possess and hold under the zemindar, viz., the surface of the earth in a condition such that, by the aid of natural agencies, it may be made use of for the purposes of vegetable or animal reproduction,' and then the learned Judge observed as follows: 'I believe it has been held constantly that land covered entirely with houses and buildings not devoted to agricultural objects does not come within the application of the Act.'

11. To the same effect were the cases of Kalee Kishen Biswas v. Sreemutty Jankee 8 W. r. 250 and Ramdhun Khan v. Haradun Puramanick 12 W. r. 404; 9 B.L. r. 107 n, and the case decided by the full Bench of this Court--Rani Durga Sundari Dasi v. Bibi Umdatannisa 9 B.L.R. 101 where it was held that a suit for enhancement of rent of land covered with buildings would not lie in the Revenue Court under Act X of 1859. Act VIII (B.C.) of 1869 was but a re-enactment of the provisions of Act X of 1859 with this difference that the jurisdiction which under Act X of 1859 had been vested in the Collector was transferred to the ordinary Civil Courts. And we observe that in the case of Judoonath Ghose v. Schcene Kilburn and Company I.L.R. 9 Cal. 671 which has already been referred to, it was held that, in respect of a dur-maurasi-mocurari lease of land which was not let for agricultural purposes, the provisions of the Rent Act [VIII (B.C.) of 1869] had no application, and that the lessee could not, under Section 20 of that Act, relinquish his leasehold. But it has been contended before us that whatever the word 'land' meant in the Rent Acts of 1859 and 1869, the Bengal Tenancy Act has a much wider scope, and that it includes lands other than those let out for agricultural or horticultural purposes. We do not think we are called upon in the present case to discuss this very large question. It will be sufficient for the purposes of the present case if we determine whether the tenancy which was created in favour of the defendants comes within the purview of the Bengal Tenancy Act. Now the word 'tenant' has been defined in Clause 3, Section 3 of this Act to mean 'a person who holds land under another person, and is, or but for special contract would be, liable to pay rent for that land to that person.' It will be observed, upon a consideration of the different parts of the Act, that the word 'tenant' has been used as a generic term: it applies equally to tenure-holders and to raiyats. In the same Section 3, the word 'rent' is defined, and it means 'whatever is lawfully' payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant.' The word 'tenure' means 'the interest of tenure-holder or an under-tenure-holder,' and the word 'holding' has been defined to be 'a parcel or parcels of land held by a raiyat and forming the subject; of a separate tenancy.' Then in Chapter II we have the classes of tenants. Section 4 says: 'There shall be, for the purposes of this Act, the following classes of tenants, viz., (1) tenure-holders, including under-tenure-holders, (2) raiyats, and (3) under-raiyats, that is to say, tenants holding whether immediately or mediately under raiyats.' Section 5 defines who is a 'tenure-holder,' and it says it 'means primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it,' and so forth; and the word 'raiyat' has been thus defined: it means 'primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family, or by hired servants, or with the aid of partners,' and so forth. Reading Chapter II, as a whole, and other portions of the Act itself, it seems to us that the Legislature contemplated that only three classes of tenants should be regarded as holding lands within the meaning of the Bengal Tenancy Act, viz., tenure-holders, raiyats, and under-raiyats; and we have to find out, in the case now before us, whether the defendants are tenure-holders, raiyats or under-raiyats. That they could not be raiyats or under-raiyats is perfectly clear, for, as already pointed out, a raiyat is a person who has acquired a right to hold land for the purposes of cultivation. It is obvious that the defendants did not acquire this land for the purpose of cultivation. It was not land used for agricultural purposes, nor was it acquired for the purposes of cultivation, but it was acquired for the purpose of building and for establishing a coal depot. It was, however, contended before us that they could be regarded as tenure-holders within the meaning of Section 5. We think that they could not be so regarded, for they did not acquire from their landlord a right to hold the land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it. They acquired the land with the object of holding it themselves and using it as a coal depot, and not for any of the purposes mentioned in Section 5. Whether the words 'collecting rent' as occurring in that section should be taken as confined to collecting rents from raiyats, or should be taken to be applicable also to cases where rents are collected, not from raiyats but from under-tenants of the same class as the lessees, it is not necessary for us in the present case to decide.

12. Under these circumstances we think that the provision as to limitation contained in Schedule II annexed to the Act has no application in this case. It has been held by a Pull Bench of this Court Mackenzie v. Haji Syed Mahomed Ali Khan I.L.R. 19 Cal. 1 that in suits for rent governed by the Bengal Tenancy Act the limitation is three years, as provided in Article 2 of the third Schedule, although the lease might be a registered lease; and in respect of cases not governed by the Bengal Tenancy Act, where there is a registered lease, it has been held, both in this Court and also in other High Courts, that the limitation is six years as prescribed by Article 116 of the Indian Limitation Act, XV of 1877. In this case, the lease is a registered lease, and therefore, in accordance with these rulings, the plaintiff is entitled to recover rent for six years as sued for. The result is that this appeal will be dismissed with costs.


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