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Lalji Sahu and ors. and Vs. Shamlal - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.827
AppellantLalji Sahu and ors. and ;guljan Mahto and ors.
RespondentShamlal
Cases ReferredTillessuree Kooer v. Asmedh Kooer
Excerpt:
rent, right to collect - limitation act (ix of 1908), sch, i, article 140--usufructuary mortgagee of mokararidar, rights of--death of mokararidar, effect of. - .....facts of the cases are briefly these. the plaintiff sued two tenants for rent on the basis of a title as zerbharnadar in the lands in suit. the zerbharna was granted by one of those mokarari holders whose original lease was word for word in the form dealt with in the letters patent appeals nos. 2 to 16 of 1914. the mokararidar died fifteen years before the institution of the suits. the suits are for rent of the years 1963, 1964 and 1965. the plaintiff claims to have purchased at a sale in execution of a mortgage decree the interest of the zerbharnadar on the 3rd august 1906. his title is, therefore, the title vesting in the zerbharnadar holding under the heirs of the original mokararidar after that mokararidar's death.3. the lower courts agreed in decreeing the suits on the ground.....
Judgment:

1. These appeals arise from decisions of the Judicial Commissioner of Chota Nagpur, dated the 31st March 1911, confirming decisions of the Deputy Collector of Hazaribagh.

2. The facts of the cases are briefly these. The plaintiff sued two tenants for rent on the basis of a title as zerbharnadar in the lands in suit. The zerbharna was granted by one of those mokarari holders whose original lease was word for word in the form dealt with in the Letters Patent Appeals Nos. 2 to 16 of 1914. The mokararidar died fifteen years before the institution of the suits. The suits are for rent of the years 1963, 1964 and 1965. The plaintiff claims to have purchased at a sale in execution of a mortgage decree the interest of the zerbharnadar on the 3rd August 1906. His title is, therefore, the title vesting in the zerbharnadar holding under the heirs of the original mokararidar after that mokararidar's death.

3. The lower Courts agreed in decreeing the suits on the ground that though the grant to the mokararidar might be resumable and though on resumption of the mokarari lease the zerbharna would become void, there had in fact been no resumption and the zerbharnadar was still in possession during the years in suit.

4. On appeal to this Court Mr. Justice Richardson and Mr. Justice Newbould pointed out that the lower Appellate Court had treated the case as if the only question for consideration was the question of possession. A remand was, therefore, made for findings on the following issues: 'Firstly, whether the land was or was not a tenure which the Maharajah as a superior landlord was entitled to resume, and secondly, whether, if so, the Maharajah has resumed the land and put an end to the tenure if not in the year 1905 then in the year 1907.' The learned Judicial Commissioner has upon this order of remand recorded findings, firstly, that the Maharajah was certainly entitled to resume the mokarari lease but that he had not made any resumption in 1905 and that it was nobody's case that he had made any resumption in 1907.

5. We are asked to disregard these findings of fact on the ground that they do not decide the point in issue. It is urged on the authority of the case of Beni Pershad Koeri v. Dudhnath Roy 27 C. 156; 26 I.A. 216; 4 C.W.N. 274 that a grant for a life becomes void on the death of a grantee and that, therefore, the zerbharnadar in this case had no title upon which he could ask the ryots to pay rent, and secondly, on the authority of the case of Tillessuree Kooer v. Asmedh Kooer 24 W.R. 101 that the plaintiff in a suit for rent is required to show not only possession but also a valid title upon which that possession is based. It is clear that this was the argument in the minds of Mr. Justice Richardson and Mr. Justice Newbould when they remanded these appeals. They required the plaintiff to show not only that he had possession but also that he had title. We are required to consider the case from that point of law.

6. Taking first the decision of the Judicial Committee quoted above, it appears to us that from the date of the death of the mokararidar the mokarari grant became void. The question arises, what was the position of his successors who held on for fifteen years after his death. They were not holding in adverse possession for they asserted no adverse possession. They asserted only that they continued to be tenants. They must be presumed to have been tenants. The question is, what was the nature of their tenancy. On the analogy of Section 106 of the Transfer of Property Act, we may regard them as lessees without leases in respect of whom the presumption arose that they were tenants holding a yearly tenancy terminable by six months' notice, or we may regard them as tenants on sufferance liable to be ousted at a moment's notice. Even though this chapter of the Transfer of Property Act does not apply to agricultural leases we still have to consider whether there has been any determination of their tenancy. We accept as final the decision of fact of the Judicial Commissioner that there was no determination in 1905. On that finding the defendants-appellants are clearly liable to the respondents for the rents of 1963 and 1964. But in recording the decision that it is not the case of either party that there was a determination of the tenancy in 1907, the Judicial Commissioner appears to have ignored the notice which he has found as a fact was issued in August 1907, directing the zerbharnadar to vacate the property before the close of 1964.

7. In support of his right to collect the rents of 1965, the learned Vakil for the respondents urges, firstly, that the right of the Maharajah to terminate the tenancy was barred by limitation if not under Article 139 then under Article 140, secondly, that the question of the finality of the notice issued by the Maharajah to the zerbharnadar in 1907 has not been sufficiently gone into by the lower Appellate Court to justify a decision thereon by this Court, and lastly, that under Section 68 of the Chota Nagpur Tenancy Act no tenant can be ejected save upon a decree by the Deputy Commissioner, and that in the absence of such a decree the present zerbharnadar had a right to hold on to his tenancy and collect rents as a tenant.

8. With regard to the question of limitation it is sufficient to say that the zerbharnadar's tenancy was not determined until the notice was served on him. That notice was served in 1907. It cannot be suggested that the prescribed period of limitation had elapsed between that date and the date of the suit. Article 189 does not bar the suit. Nor can the Maharajah by any stretch of the imagination be regarded as a remainderman or a reversioner or a devisee so as to bring his claim to evict the zerbharnadar under Article 140 of the Limitation Act.

9. The question of limitation is decided against the respondent. We are satisfied that the respondent's right to collect rents must be based not only on possession but also upon title. If it is shown thai he was merely a trespasser upon the property, the tenants cannot be called upon to pay rent to him.

10. The question whether his possession was that of a tenant or of a trespasser, depends upon the validity and finality of the notice to quit served upon him in 1907. Let us consider first the validity of that notice. On the death of the original mokararidar the mokarari was void. The zerbharnadar was also void. The zerbharnadar was a tenant holding over upon sufferance. In equity he was entitled to a reasonable notice. Six months' notice is without question a reasonable notice. He received six months' notice to quit. On the expiry of 1964 he became a trespasser upon the property. On the question of the finality of this notice, it is urged for the respondent that the materials on the record are insufficient for a definite conclusion. We have no hesitation in saying that they are ample. That the notice was served is proved. It is for the respondent to show that it was waived. It is clear from the judgment of the Deputy Collector and from that of the Judicial Commissioner that the Rajah, far: from waiving this notice, did everything in his power by the taking of kabuliats and the institution of suits for rent to insist upon his right to enter upon the property. We are satisfied that the notice of 1907 was a final notice to quit, and that from the moment that notice was served, the respondent was a trespasser upon the property and had no right to claim rent from the ryots upon it.

11. The result is that the appeals must be dismissed in respect of the rents for 1963 and 1964. They must be decreed with regard to the rent for the year 1965. It must be held that from the beginning of the year 1965, the plaintiff-respondent had no title upon which he could demand rent from the ryots holding lands within the estate of which the respondent is zerbharnadar. Let decree be made in the terms for the rent claimed for 1963 and 1964 and for cesses.

12. In view of the difficult position in which the defendants appellants were placed, they must be exempted from liability for damages or costs. The decree will bear interest at six per cent. from to-day's date.


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