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Brahmamoyee Barmani Vs. Sheikh Munsur - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in58Ind.Cas.859
AppellantBrahmamoyee Barmani
RespondentSheikh Munsur
Excerpt:
tenancy, essential elements of - profit sharing arrangement, whether creates tenancy. - .....he forthwith acquired the status of an occupancy raiyat in respect of the land in suit. mr. justice newbould has accepted this contention and has dismissed the claim for ejectment.4. the terms of the contract between the parties are set out at length in the judgment of mr. justice newbould and need not be reproduced here. it is sufficient to bay that the document does not, in our opinion, create a tenancy. in the first place, there is no covenant to pay rent and, in the second plane, there is no clause which creates in favour of the defendant an interest in the land. consequently, the two essential elements requisite for a lease are absent. the defendant no doubt became a burgadar but it is well-settled that a burgadar is not necessarily a tenant. a burgadar is a person who enters.....
Judgment:

Asutosh Mookerjee, C.J.

1. This is an appeal by the plaintiff in a suit for recovery of possession of land.

2. The case for the plaintiff is that the land was made over to the defendant for a period of eleven months on condition, first, that the defendant would bring the land under cultivation, would make over half the produce to the plaintiff and take the other half as his remuneration, and, secondly, that at the end of the eleven months, the defend ant would quit the land without notice. The defendant entered into possession but at the end of the prescribed period did not vacate the land. The result was the institution of this suit.

3. The defendant pleaded, contrary to the terms of the document executed by him in favour of the plaintiff, that he was an occupancy raiyat and was, not liable to be ejected. He alleged that he was at the date of the execution of the document, a settled raiyat of the village holding other lands, and that as he became a tenant of the disputed land the moment the deed was executed and he entered into possession thereunder, he forthwith acquired the status of an occupancy raiyat in respect of the land in suit. Mr. Justice Newbould has accepted this contention and has dismissed the claim for ejectment.

4. The terms of the contract between the parties are set out at length in the judgment of Mr. Justice Newbould and need not be reproduced here. It is sufficient to bay that the document does not, in our opinion, create a tenancy. In the first place, there is no covenant to pay rent and, in the Second plane, there is no clause which creates in favour of the defendant an interest in the land. Consequently, the two essential elements requisite for a lease are absent. The defendant no doubt became a burgadar but it is well-settled that a burgadar is not necessarily a tenant. A burgadar is a person who enters into a profit-sharing arrangement; he cultivates the land, gives a share of the profits to the owner and keeps the remainder as his remuneration, In individual cases, the terms of the contract may indicate that the intention of the parties was to create in the grantee an interest in the land ; in other words, if third is a demise, a Tenancy is created. But the case before us is not of that description. There is one important feature of the transaction, which makes it plain that the parties did not intend that there should be a tenancy. The period during which the contract was to subsist was fixed at only eleven months; it is certainly surprising to be told that in this country cultivating leases are granted for such a short term as eleven months. Besides, there was here an express undertaking by the defendant to quit the land without notice upon the expiry of the prescribed term. It is not disputed that, at the date of the arrangement, the defendant was known to be a settled raiyat of the village. Consequently, the moment he obtained a Tenancy right in the disputed land he would acquire the status of an occupancy raiyat under Sub-Section 1 of Section 21 of the Bengal Tenancy Act. In such circumstances, it is inconceivable that the defendant should have solemnly agreed to quit the land at the end of 11 months. We cannot assume that the object of the parties was not to give expression to the real understanding between them, but rather to conceal the true arrangement. Reviewing all the terms of the contract, we feel no doubt that there was no tenancy and that the defendant was bound to quit the land upon the expiry of the prescribed period.

5. It is not necessary to refer in detail to the decisions mentioned in the judgment of Mr. justice Newbould. Each case must turn upon terms of the contract between the parties. In the present case we feel no doubt that the Subordinate Judge correctly made a decree for ejectment in favour of the plaintiff which should not have been reversed.

6. The result is that this appeal is allowed, the dears made by Mr. Justice Newbould set aside and the decree of the Subordinate Judge restored with casts here and before Mr. Justice Newbould.

Fletcher, J.

7. I agree.


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