1. A demand for rent from tenants, to the under-tenure-holder's knowledge may amount to notice.
2. There are decrees which were obtained by the purchaser before the present rent suits were brought viz., on 3rd August 1909. In Clause (4) of Section 37 Act XT of 1859, the words ' have been made' indicates (in the use of the present perfect tense) that they must be in existence at the time of sale; the right accrues at the time of the sale when the protection is claimed.
3. It is the existence of that class of improvements that gives the protection. The land in question being busti land does not fall under any of the exceptions mentioned in Section 37 of the Land Revenue Sale Act: Sagore Hath Base v. Rakhal Dasi Debi (1910) 7 Ind 912. These huts do not come within the description of dwelling-houses, which must be of a permanent nature to claim this protection; Makar Ali v. Shiyam Charan Das (1898) 3 C. W. N. 212. All the cases proceed on the assumption that the existing state of things is a. garden and not that it has been a garden.
4. Mr. B. Chakravarti (with him Babu Atul Krishna Roy), for the respondents. I am not going to contend that a Formal written notice is necessary, but there must be notice to the under-tenure-holder whose tenure is to be avoided, and that by the auction-purchaser showing by an unequivocal act that he wants to avoid the tenure. He is a trespasser if he approaches the land without notice. It is fraudulent to get at the tenants on the land and win them over, without the knowledge of the under-tenure-holder. He must institute a suit or convey his intention to the incumbrancer or under-tenure-holder of annulling the incumbrance: Mir Waziruddin v. Lala Deoki Nandan (1907) 6 C. L. J. 472, 488. Instead of fighting six cases (as at .present) what is there to prevent the auction-purchaser from filing one suit against the incumbrancer alone. My further submission is, that this being a second appeal we must accept the finding of fact arrived at by the lower Appellate Court.
5. These six suits have been brought by me for rent, and it is for the tenants to show that the relation of landlord and tenant between them and mo had been nut an end to. What is the date from which they say the under-tenure was annulled? See Ramtaran Kapali v. Asivini Kumar Dutt (1910) L. R. 37 Calc. 559, 566. This decision will, not bind the auction-purchaser. He should file a title suit. The notice is not sufficient. The sale does not ipso facto make void all incumbrances but they become voidable only at the option of the purchaser, which must be clear and unequivocal: Titu Bibi v. Mohesh Chunder Bagchi (1883) L. L. R. 9 Calc. 683 The effect of the auction-purchaser's action may be a strong desire only. We do not as yet know the actual quantity of land covered by these suits. The defence of jus tertii must be proved with regard to the whole tenure: Bha(sic)o Bibee v. Ram Kant Roy (1877) I. L. R. 3 Calc. 293. Leases of lands which may not have been expressLy leased for the purpose of making gardens thereon, but on which gardens have subsequently been made, arc excepted under Clause (1885) I. L. R. 12 Calc. 327. of Section 37 of Act XI of 1859,.and it does not matter if there are Some huts on some portion of the garden: Gobind Chandra Sen v. Joy Chandra Das (1885) I. L. R. 12 Calc. 327.
6. Do you say that, if it has been a garden at any time, it is protected for ever?
7. I say that this provision is for the protection of the Government revenue.
8. Do not the words 'have been' mean 'are in existence up to the time of the sale?' No. Babu Dwarkanath Chakravarti, in reply.
Cur, adv. vult.
N. R. Chatterjea, J.
9. These appeals arise out of suits for recovery of rent of homestead lands comprised in a maurusi mokarrari tenure which belonged to the plaintiffs. The defence was that the tenure held by the plaintiffs had been extinguished by the sale of the estate, within which it is situated, for arrears of revenue under the provisions of Act XI of 1859, that the purchaser had entered info possession of the estate and that the defendants had paid the rents to the purchaser.
10. A preliminary objection has been taken to the hearing of the appeals on behalf of the respondents under Section 102 of the Civil Procedure Code. It has been contended that a suit for rent is of a nature cognizable by the Small Cause Court, and reliance is placed on the case of Soundaram Ayyar v. Sennia Naickan (1900) I. L. R. 23. Mad. 547. Now. Article 8 of the second Schedule of the Provincial Small Cause Courts Act expressly exempts suits for rent other than house rent from the cognizance of Small Cause Courts unless the Judge of the Court of Small Causes has been expressly invested by the Local Government with authority to exercise jurisdiction with inspect thereto. But the majority of the Judges constituting the above Full Bench of the Madras High Court, were of opinion that a suit for rent is of the nature of a suit cognizable by the Small Cause Court. It appears that by a notification the Madras Government has invested all Subordinate Judges and District Munsifs, within the Presidency, with jurisdiction to try on their Small Cause Court side all suits for rent falling-within the pecuniary limits of their special jurisdiction. No such notification has been issued by the Local Government in this Presidency and so far as this Court is concerned second appeals in suits for rent (other than house rent), although the value thereof does not exceed Ks. 500 have always been entertained. I accordingly overrule the preliminary objection.
11. Two questions have been raised in these appeals. The first is whether the tenure of the plaintiffs is protected under the provisions of Clause (4) of Section 87, Act XI of 1859; and, secondly, whether the tenure has been annulled.
12. As regards the first question it appears that the estate consists only of 2 bighas, 14 cottas of busti land. The learned District Judge, however, has held the land is one on which a garden has been made because it formed part of 10 bighas of land which was once a garden and is called Seal's garden. I am of opinion that he is wrong in this view. The land ceased to be garden about a quarter of a century ago, and tenants have been settled on the lands since then. The mere fact that a garden was made on a piece of land a quarter of a century before the sale would not make it land 'on which a garden has been made' for all time to come. The land comprised in estate No. 1678 for a very long time has been, and at the time of the sale was busti land, in the plaints themselves, the lands are described as homestead lands. I am accordingly of opinion that the tenure does not fall within the exception to Section 87 of Act XI of 1859 and is liable to be annulled.
13. The next question is, whether the tenure baa been annulled. It is no doubt true that a sale for arrears of revenue does not ipso facto avoid incumbrances or under-tenures, but only renders them voidable at the option of the purchaser. See Titu Bibi v. Mohesh Chunder Bagchi (1883) I. L. R. 9 Calc. 683. But the purchaser may annul an under-tenure not only by the institution of a suit against the under-tenure-holder, but can do so by any suitable means. It has been contended on behalf of the appellant that it is not necessary to give any notice to the under-tenure-holder for avoiding the tenure, and reliance is placed on an observation in the judgment in the case of Dursan Singh v. Bhawani Koer (1913) 17 C. W. N. 984, 987. viz. that 'the purchaser may elect to annul an under-tenure not only by institution of a suit, or by giving a notice to vacate, but may indicate it by other means.' In that case a notice wan in fact, given to the under-tenure-holder, and all that was meant to be said was that a formal written notice was not essential. The effect of a sale is not ipso facto to avoid under-tenures; the purchaser has the option of avoiding them or keeping them intact. It is necessary therefore that the purchaser must by some unequivocal act indicate his intention to avoid under-tenures if he desires to do so. A formal written notice to the tenure-holder would certainly be the most convenient mode of doing it and this litigation demonstrates the difficulties in which the purchaser may be placed, if he omits to serve a written notice on the tenure-holder. But I do not think that a formal notice is essential and although the election of the purchaser to avoid must be brought to the knowledge of the tenure-holder, a written notice is not the only mode in which it can be done.
14. The learned District Judge has held that the verbal notice said to have been given to the plaintiff was not proved, and that 'the purchaser did nothing to avoid the incumbrance, but only started collecting rent on his own account which I hold cannot be sufficient notice to the plaintiff.' But the Court of first instance found that on the purchaser's demanding rent from the tenants, they informed the plaintiff of it, hut that he declined to assist them, unless they paid off the arrears of rent due from, them, that the purchaser sued the tenants for rent, took out warrant of attachment in execution of decrees and realised rents from the tenants in repudiation of the plaintiff's title, and that Court came to the conclusion that the purchaser is in actual possession of the taluk through the tenants. These finding's have not been displaced on appeal. If these finding are correct, they show that the plaintiff had not only notice of unequivocal acts on the part of the purchaser indicating his election to avoid the mokararri but that the purchaser had in fact obtained possession of the estate.
15. It was pointed out on behalf of the respondents that in the case of Mir Waziruddin v. Lala Deoki Nandan (1917) 6 C. L. J. 472. 488 the forcible taking away of crops of the tenants by the purchaser and the institution of rent suits which must be taken to be strong indications of the purchaser's intention to avoid under-tenures were held not to be sufficient. But in that case the purchaser sought to annul under-tenures and recover possession more than 12 years after the date of the sale, and those facts were considered by the learned Judges as bearing upon the question of limitation. The rent suits instituted against some of the tenants were withdrawn, as soon as the latter denied the plaintiff's title, and no further attempt was made to enforce the right to realise any rent from any of the tenants of the property. The only attempt at possession consisted in an endeavour by a servant to take away crops grown by one of the many tenants of the estate and the learned Judges held that an entry upon the land for this purpose, an entry which resulted in a conviction for theft and criminal trespass did not constitute possession much less possession of the entire estate for the purposed of limitation.
16. In the present case there is no question of limitation. Had the purchaser instituted a suit for annulment of the plaintiff's mokarrari, they could have no possible defence to the action, and if the purchaser has succeeded in obtaining possession of the estate peacefully and openly and is in possession of the estate by receipt of rent through the tenants the mokarrari of the plaintiff must be held to have been annulled. The lower Appellate Court has, however, not come to a clear finding upon the facts found by the Court of first instance. The decrees of the lower Appellate Court are accordingly set aside and the cases sent back to that Court. That Court wilt come to clear findings upon the facts found by the Munsif indicated above, and dispose of the appeals according to law. Costs to abide the result.
17. All civil suits, the value of which does not exceed Rs. 500, are cognizable by Courts of Small Causes, subject to the exceptions contained in the second schedule of the Provincial Small Cause Courts' Act and id to the provisions of any special Act. Suits for rent, other than house rent, are included. in the second schedule of the Provincial Small Cause Courts' Act. But the Local Government has authority to vest Judges of Small Cause Courts with powers to try rent suits. No notification has been made vesting Small Cause Court Judges in Bengal in general, or the Judge of first instance in this particular case, with such powers. I am, therefore, of opinion that this appeal is not incompetent.
18. As regards the question of annulment, of an under-tenure, I agree with my learned brother in thinking that no particular method of expressing an intention to annul an under-tenure is necessary, but that any unequivocal act is sufficient which indicates the intention to annul and which brings that intention to the knowledge of the under-tenure-holder. The learned Judge has found against the story that definite notice was given by the purchaser to the under-tenure-holder. There remains the question of the collection of rent from the tenants. In my opinion it is impossible to lay down any hard and fast rule as to how far collection from tenants may be taken not only to indicate the intention to annul but also to establish the fact that that intention was brought to the knowledge of the under-tenure-holder. Collection from so large a majority of the tenants as to amount to obtaining possession of the estate would probably be sufficient to indicate the intention to annul to the under-tenure-holder. But other considerations might come in., e.g., whether the number of tenants was large or small, and whether collections were made openly or secretly. It is needless to multiply examples. It is sufficient to say that two things must be established (i) a definite intention to annul, (ii) an indication of that intention to the under-tenure-holder.
19. As the learned Judge has dealt with this part of the case apparently with the idea that a definite notice was necessary I agree in the proposed order of remand.
20. As regards the remaining question whether the under-tenure was protected under Clause (4) of Section 37 of Act XI of 1859, it is clear that in so far as protection is claimed, on the ground that the land is garden land, the claim must fail. It is apparently now a mill busti but the learned Judge held it was protected because it was part of; a larger area on which a garden, was once made. Now, the 4th. clause of section. 37 clearly contemplates improvements or works of a permanent character. These are protected irrespective of whether the lease way or was not given for the purpose of the work in question. But to afford protection the work must still be in existence or the land be used for the purpose of the work. The wording of the clause is 'leases of land whereon . . . gardens have been made.' The perfect tense denotes a present state. If the garden has ceased to exist, the fact that there was once a garden on the land will not protect it.
21. Whether the land would be protected as part of a mill busti would depend on a variety of circumstances. Land on which there are merely temporary huts is not of course on that account protected, but, if the busti land is covered by the lease of land on which the mill stands, or if the busti is an integral part of the mill and exists only for the purposes of the mill, it is possible that it might be protected. It is not, however, necessary to pursue. this point further as protection has not been sought on this ground