1. This is a claimant's appeal against the decision by an Arbitrator appointed under, Section 19 of the Defence of India Act.
2. On behalf of the respondent a preliminary objection has been raised about the maintainability of the appeal, but that question can be considered only after the relevant facts are shortly stated.
3. Premises No. 20, Baburam Ghosh Road, Tollygunje, had been requisitioned under the Defence of India Act, and claim was laid on behalf of three parties, viz., the admitted owners of the property who would be described hereafter as the Ghoses and the present appellant Kanhyalal Kanodia and a certain concern known as the Unity Production. After a certain date the Ghoses did not press their claim any further. The Collector, however, held that Rs. 1000/- per month would be the reasonable compensation for the property requisitioned, but the Kanodias were not entitled to any part of the same. Kanodia had claimed compensation at the rate of Rs. 12500/-per month during the period of requisition; Unity Production had claimed compensation for loss of business etc. at the lump sum of Rs. 1194582/5/3 pies. The offer made by the Collector was not accepted either by Kanodia or the Unity Production.
There was a reference before the Arbitrator under Section 19 of the Defence of India Act on behalf of the two claimants which came up for hearing before the Arbitrator and disposed of by him by his order, dated February 18, 1948. Againstthis decision Kanhyalal Kanodia has preferred the present appeal. No steps have been taken by the other claimant, Messrs. Unity Production.
4. The learned Arbitrator came to the conclusion that neither Kanodia, nor Messrs. Unity Production were entitled to the compensation claimed by them in the present proceedings. The Collector's offer of Rs. 1000/- a month as rent of the premises was, however, to remain unaffected by his decision, and whoever was entitled to that sum might draw it without prejudice.
5. It is against this 'nil' award, as it has been described by the appellant, in favour of Kanodia that the present appeal has been preferred. The decision on the preliminary objection about the maintainability of the appeal rests on interpretation of the Rules framed under Section 19 of the Defence of India Act relating to arbitration for determining the proper compensation for requisitioned premises.
Under Clause (f) of sub-section 1 of Section 19 of the Defence of India Act,
'An appeal shall lie to the High Court against an award of the Arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by the Rule made by the Central Government.'
6. Such Rules were published in the Gazetteon April 8, 1943, under a notification, dated March30, 1943. Rule 19 which is the relevant Rule forour present purpose was modified by a subsequentnotification, dated March 22, 1945. The secondproviso to Rule 19 is in the following terms :
'Provided further that no appeal shall lieagainst an award made under this Rule wherethe amount of compensation awarded does notexceed Rs. 5000/- in lump or Rs. 250/- permensem.'
7. It is contended on behalf of the respondent that unless the amount of compensation awarded to the particular party who prefers an appeal to the High Court exceeds Rs. 5000/- in lump or Rs. 250/- per mensem the party would not be entitled to maintain an appeal.
8. On the face of the clear terms provided in the second proviso above mentioned, there is no room for such an argument. Moreover, such an interpretation would be an unreasonable one and would lead to manifest injustice. The restricted interpretation attempted to be placed on the proviso cannot be sustained. There is no reference in the Rule which requires that the compensation is to be awarded to the particular appellant which exceeds the minimum amount mentioned therein. The language used refers to an 'award', and the award 'prima facie' refers to the entirety of the award made by the arbitrator, irrespective of the award to which a particular appellant may be entitled to.
9. What the learned Senior Government Pleader asks us to hold is really to introduce certain words into the Rule which are not there. The effect of accepting his interpretation would be to add after the words 'the amount of compensation awarded' words, which arc not to be found in the Rule as it stands.
10. The manifest impropriety and injustice that would follow such an interpretation would be made clear by referring to one particular instance only. Under an award, Rs. 1000/- per month is determined as the compensation payable to five co-sharers, and such co-sharers prefer to file separate appeals in respect of the interest which each has in the compensation money. Thecompensation awarded to each one of the five co-sharers is less than the minimum mentioned under the Rule. It is unquestionable that if the five co-sharers combine to file one appeal, such an appeal would lie as the minimum amount fixed under the Rule is exceeded. If they, however, prefer to file separate appeals the right of appeal is taken away.
11. Take another instance. If in the example given above, one only of the five co-sharers prefers an appeal, others being satisfied with what has been awarded no appeal will, according to the interpretation placed by the Senior Government Pleader, be maintainable, as the value of the appeal referred by that co-sharer only is hit by the minimum rule of Rs. 250/- per mensem, as given in the proviso.
12. In the present case, what the learned arbitrator has done is that he has held that Rs. 1000/- per month is the proper compensation, though neither of the two parties is entitled to the same. The award, therefore, is on the footing of the compensation being Rs. 1000/- per month. The preliminary objection must, therefore, be overruled and the appeal held to be maintainable.
13. It may be stated that the appellant has filed an application under Section 115 of the Code of Civil Procedure in the alternative invoking the revisionary jurisdiction of this Court, in case it were found that the appeal was not maintainable. Even if the interpretation which was attempted to be put by the respondent, be accepted, there would have been no difficulty in having the point which arises in this appeal considered and disposed of under the revisionary jurisdiction of this Court.
14. We may now proceed to consider the merits of the appeal. To appreciate the decision of the arbitrator, it is necessary to refer to certain other facts.
15. As already indicated, the property in suit belonged to two Ghoses. In July, 1937, leases for twenty years were executed by the two co-sharers in favour of the Film Corporation of India Ltd. Vide Exs. F and F(1).
16. In 1940, Messrs. Film Corporation of India Ltd. mortgaged their right, title and interest in the property to the appellant Kanodia on receipt of an advance of Rupees two lacs. The mortgagor having defaulted a suit was filed next year by the mortgagee on October 31, 1941. The mortgaged property was put up to sale by a Receiver appointed in the suit, and the mortgagee purchased the mortgaged property for Rs. 216000/-.
17. Before the sale had taken place, the landlords Ghoses had served a notice on the parties on September 17, 1941, terminating the lease in favour of the Film Corporation of India Ltd., purporting to act on the terms and stipulations contained in the leases and demanded immediate possession.
18. Although the sale in favour of Kanodia had been held on October 31, 1941, the Receiver did not execute the conveyance before March 13, 1944.
19. Immediately after the purchase by Kanodia in October, 1941, from the Receiver, Kanodia gave a lease to a firm called Unity Production which firm had from before, i.e., from about 1941, been in possession of the studio as sub-lessees under the Film Corporation of India Ltd.
20. On November 24, 1944, Ghoses, the admitted landlords and owners of the property executed leases in favour of Kanodia for a period oftwenty three years with retrospective effect, i.e., from December 1, 1941, at certain rates of rent. Under these leases the arrears of rent were required to be paid by Kanodia, and all unpaid rents as from November, 1941, were paid by Kanodia to the Ghoses.
21. While all these transactions--sale, leases and sub-leases--were being given effect to, the Government requisitioned the premises on May 14, 1943, and possession was taken on August 11, 1943. Before this date, as would appear from a scrutiny of the particulars above mentioned, Ghoses have already purported to terminate the leases in favour of the Film Corporation of India Ltd., Kanodia has purported to purchase in October, 1941, from the Receiver the leasehold estate in suit, and the latter has given a sub-lease in favour of Unity Production as from June 15, 1942.
22. After the requisition claims were put forward on behalf of Ghoses as the only party entitled to compensation. Kanodia also claimed compensation as the person interested and claimed Rs. 12500/- per month, being the rent exclusive of all taxes and other charges which Kanodia claimed he was receiving from Messrs. Unity Production, sub-leases under him. Messrs. Unity Production, in their turn, claimed, as already stated a lump sum of Rupees twelve lacs.
23. After the Ghoses had executed a lease in favour of Kanodia in November, 1944, with retrospective effect from December 1, 1941, they did not press for any compensation and left the file for the present appellant Kanhyalal Kanodia and Messrs. Unity Production.
24. What the learned arbitrator has done is to decide that on the date when the requisition took effect in August, 1943, Kanodia though in possession had no subsisting title or interest when he purported to purchase the right, title and interest of Messrs. Film Corporation of India Ltd., the leases in their favour by the Ghoses having already been determined by notices, dated September 17, 1941; the property having been requisitioned, the subsequent transactions between Ghoses and Kanodia giving leases in favour of the latter with retrospective effect from December 1, 1941, were unavailing. This decision was principally rested on certain statements appearing in the recitals in the leases, dated November 24, 1944, by which the claimant Kanodia is bound.
25. The recitals were to the effect that the Ghoses had determined the leases in favour of the Film Corporation of India Ltd. and had exercised the right to re-enter and hold the premises, and the leases in their favour, dated July 20, 1937, having been determined, the lessor, i.e., Kanodia became entitled to the suit land, freed and discharged from the obligation of the said leases, and the Ghoses became entitled as absolute owners to the property in question. On the date the new leases were purported to have been executed on the 24th June, 1944, Ghoses' rights in the premises vested in the Government, subject only to payment of compensation, and Ghoses' acts on that day could neither create nor recreate any right against the Government. It ought to be pointed out that the learned arbitrator had taken up the question of the two claimants to claim, any compensation as a preliminary point, and he did not decide any question as to what was the compensation payable, if any compensation was actually payable to the claimants. In the words of the learned arbitrator, the only question which he was called Upon to decide was,
'whether the claimants had any enforcible or legal interest in the premises on the date of requisition.'
He further observed that he was not 'going to decide that the Government is not liable to pay any compensation whatever'. We may at the very outset point out that the approach by the learned arbitrator to the question in issue was altogether erroneous.
26. For every property acquired or requisitioned all the persons interested are entitled to have their claims determined and assessed; particularly in the case of requisition, the effect of the requisition order is to deprive all parties who are interested in the property of their exercise of acts of possession or such other rights which were being exercised in respect of that property, underwhatever title it may be. It is not necessary always to determine whether the person claiming is the original owner of the property, or he has a subsisting title to the property, though he maybe in possession of the same.
27. A person in possession is a person interested, and his rights as are affected by the requisition have to be considered for determining compensation, if any is payable. On acquisition the property is acquired free from all incumbrances, direct or indirect, and on requisition for the period that the requisitioning authority enters into possession of the property, the rights of all other persons are suspended; such persons as are affected by the requisition are entitled to compensation.
28. On the facts of the present case, the solution of the difficulty which the learned arbitrator has placed before him for determination may be done from two different points of view.
29. Let us consider, in the first place, as to where a person who is in possession, though he may not be able to prove to the hilt his right to retain possession against the rightful owner, whether such a person is interested in the property and is entitled to claim compensation from the requisitioning authority. In this connection we shall have to consider as to what is the effect or implication of the right of a person in possession without being the owner.
30. It is not necessary for us at the present stage to enter into the history of the development of the different notions of possession in different systems of law or in India. The important place which was assigned by Saving to 'animus dominii' to constitute possession in a legal sense, or enunciation of the principles by Bracton. It is sufficient for our present purpose that even a person with a precarious interest in land was held by this Court in -- Girish Chandra v. Secy. of State', AIR 1920 Cal 326 (A), to be entitled to compensation.
31. The observations of the Judicial Committee in -- 'Perry v. Clissold, 1907 AC 73 (B), confirming the decision of the High Court of Australia in -- 'Clissold v. Perry', 1 Com-W L R 363 (C) may be considered in this connection that compensation was payable to every person who has been deprived of possession and it is not necessary to scrutinise strictly whether such a person had legal right to retain possession against the rightful owner.
32. Reference may, however, be made in this connection to an earlier decision in -- 'Doe v. Barnard', (1849) 13 Q B 945 (D). In that case a person occupied without right for 18 years and died leaving a son. A third person excluded the son and occupied for 13 years when he wasousted by the rightful owner. The last person to be dispossessed brought a suit in ejectment against the rightful owner but failed, not because of any right which the rightful owner had in the property, as the latter had as plaintiff in an ejectment suit been already defeated, the title of the original owner having already been lost under the law of limitation. The reason which was given by the Court in that case was that the plaintiff who himself was a trespasser could not eject another trespasser as by lapse of time the owner has become a trespasser having lost his title in the property. The judgment in this case also therefore supports the view and is contradictory to what was ultimately decided by the Privy Council.
33. As has been described by Lightwood in Possession of Land,
'Primarily possession is a fact, but mere possession frequently secures for the possessor a certain measure of legal protection, and hence it becomes a source of right known as the right of possession ('jus je possessionis').'
That this principle is accepted in Indian Law is borne out by the provisions contained in Section 9 of the Specific Relief Act. Possession of even a person without any title cannot be forcibly taken away by another person without having the proper order from a competent Court. Such a person in possession is entitled to get back possession from the Court without reference to any enquiry of title to the property, merely dependent upon the factum of possession being proved.
34. A person may also claim under Section 42 of the Specific Relief Act declaration of his right to retain possession against another person who cannot show a better title and who denies or is interested to deny his right founded on the mere fact of possession irrespective of whether the latter has continued for a sufficiently long period to confer an absolute title upon him under Section 28 of the Limitation Act or not. Vide -- 'Kachar v. Bai Rathore', 7 Bom 289 at p. 291 (E).
35. Reference may also be made in this connection to the effect of the decision in -- 'Ismail Ariff v. Mahomed Ghous', 20 Ind App 99 (PC) (F), where it was held that the lawful possession only extending over six years is sufficient to entitle a person to a declaration of title against another who had no title and was a mere trespasser. The fact which led to the decision in --'Must. Sunder v. Must. Parbati', 16 Ind App 186 (PC) (G) are worth referring to in this connection. That was a suit in which one widow had claimed partition against her co-widow. The widows had no title to the property in question, but even assuming that fact the Judicial Committee allowed the partition to stand, and Lord Watson observed as follows (p. 194) :
'Their possession was lawfully attained, in this sense, that it was not procured by force or fraud, but peaceably, no one interested opposing. In these circumstances, it does not admit of doubt that they are entitled to maintain their possession against all comers except the rightful owners.'
36. The principle enunciated in -- 'Asher v. Whitlock', (1865) 1 QB 1 (H), that one with a possessory title could use the same to eject a trespasser and the latter Privy Council decision in -- '1907 AC 73 (B)', already referred to were referred to and followed in India in -- 'Jagadishwar v. Collector of Goalpara', AIR 1925 Cal 197 (2) (I) and in -- 'Parthasarathy v. Subbaraya', AIR 1924 Mad 67 at p. 71 (J).
37. In 'Jagadishwar's case, (I)', the principle was applied in a case where the Court was called upon to determine where a sub-tenant who had been given a right to construct 'pucca' building on a plot of land, but whose interest was not transferable except with the sanction of his superior landlord had an interest which entitled him to be heard upon the question of adequacy of compensation awarded by the Collector under the Land Acquisition Act. The answer was given in the affirmative by a Division Bench of this Court relying on the decision of the Judicial Committee referred to above. The authorities were referred to with approval where it had been laid down that compensation was payable to every person deprived of the land resumed for public purposes even though his title was merely permissive and had not been perfected by adverse possession for the statutory period.
38. Reference may also be made to the observations in an earlier decision of this Court in --'Chundee cnurn Chatterjee v. Bidoo Budden. Banerjee', 10 WR 48 (K), where it had been held that 'prima facie' a person in possession was entitled to the entire compensation unless some one else showed that he had a better or a proper claim.
39. The facts already referred to in the present case are much stronger than those to which reference has been made in some of these decisions. In the present case the claim put forward by Kanodia is not resisted in the first instance by the admitted owners of the property, and consequently the leases which had been executed by the Ghoses in November, 1944, in favour of Kanodia purported to have retrospective effect from December 1, 1941, i.e., a date anterior to the date when the requisition was given effect to. We do not express any opinion as to what is the effect of such a lease, but we do make reference to the same only for the purpose of showing that the claim of the appellant is based not merely upon the factum of possession, but on more substantial grounds, the effect whereof cannot, be ignored.
40. Moreover, the notices which had been given by the Ghoses in September, 1941, purporting to terminate the leases to Film Corporation of India Limited may or may not have the legal effect of 'ipso facto1 terminating the leases.
41. If the leases in favour of Film Corporation of India Ltd. granted in 1937 have not been legally terminated, Kanodia has got that interest under the sale by the Receiver in 1941. If the leases in favour of the Film Corporation of India had been effectively terminated by the Ghoses a few days before the said sale the subsequent leases by the Ghoses in favour of Kanodia may be used as a second shaft in support of the claim for compensation.
42. What is the nature of the right and how it is to be valued must depend upon a proper determination of the necessary facts and the legal consequences thereof. Suffice it to say for our present purposes that the decision of the learned Arbitrator that Kanodia had no subsisting right to claim compensation was an erroneous decision and must be set aside. As the question had been taken up as a preliminary issue only, all the other issues in the case will have to be tried in the usual way and according to law.
43. The result, therefore, is that this appeal is allowed and the award of the Arbitrator, dated February 18, 1948, in Land Acquisition Case No. 21 of 1945 is set aside and the case is remitted to an Arbitrator duly appointed under Section 19 of the Defence of India Act for trial of the remaining Issues and for determining what compensation is payable to the present appellants claimants.
44. The appellants will be entitled to the costs of this Court, the hearing fee being assessed at twenty gold mohurs. The costs of the hearing in the Lower Court at the preliminary stage will be considered when the matter is heard and finally disposed of by the Arbitrator.
45. No order is necessary on the application.
Renupada Mukherjee, J.
46. I agree.