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Esahaque Miah and anr. Vs. Dulah Miah Patwari - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1931Cal87,129Ind.Cas.855
AppellantEsahaque Miah and anr.
RespondentDulah Miah Patwari
Cases ReferredMohammad Hoossain Chaudhury v. Khana Kazi
Excerpt:
- .....and arises out of a suit brought by the plaintiff, now respondent, for a declaration of his raiyati right to certain lands included in khatian no. 471 of chur mohana and for khas possession of the same after service of notice under section 49, ben. ten. act. under that raiyati there was an osat-raiyati, or under-raiyati, in the name of fazler rahaman the predecessor of the defendants at an annual rental of rs. 41-4. the plaintiff's ease was that he had determined the said under-raiyati by a notice to quit served upon fazler rahaman on 30th april 1921. fazler rahaman died in bhadra 1329 b. s. (1922). according to the plaintiff the osat-raiyati right is not heritable, no occupancy right can be acquired therein and the defendants have no interest in the land. neither fazler rahaman.....
Judgment:

Graham, J.

1. This is an appeal by defendants 1 and 6 from a decision of the First Additional Subordinate Judge of Noakhali, confirming a decision of the Munsiff, Second Court, of Lakhipur and arises out of a suit brought by the plaintiff, now respondent, for a declaration of his raiyati right to certain lands included in Khatian No. 471 of Chur Mohana and for khas possession of the same after service of notice under Section 49, Ben. Ten. Act. Under that raiyati there was an osat-raiyati, or under-raiyati, in the name of Fazler Rahaman the predecessor of the defendants at an annual rental of Rs. 41-4. The plaintiff's ease was that he had determined the said under-raiyati by a notice to quit served upon Fazler Rahaman on 30th April 1921. Fazler Rahaman died in Bhadra 1329 B. S. (1922). According to the plaintiff the osat-raiyati right is not heritable, no occupancy right can be acquired therein and the defendants have no interest in the land. Neither Fazler Rahaman nor his heirs were at any time recognized as tenants after service of notice. The plaintiff accordingly, sued for rent which had accrued previous to the death of Fazler Rahaman, and he also claimed rent for a subsequent period from the defendants.

2. The main defence set up by the defendants was that they had a permanent right in the holding and were not liable to ejectment. They claimed that the original patta of 1304 B. S. conferred a permanent right upon their predecessor Fazler Rahaman, and further that at a later date they acquired a permanent right by virtue of a compromise decree in a suit between the parties. The trial Court decreed the suit, and that decree was confirmed by the Subordinate Judge on appeal. The learned Munsif relied upon a decision in the case of Surjug Sharan v. Dukhit [1913]18 I.C. 809 and held that the decree in question being contrary to statute must be held to have been made without jurisdiction and that no reliance can be placed upon the terms of the solenama or the decree. The Court of appeal below adopted the same view and hold that the decree and the solenama could not be given effect to. The learned Subordinate Judge further held that Ex. 3 which was a decree in a previous suit between the parties operated as res judicata and was fatal to the defence set up by the defendants. The appeal was accordingly dismissed. Defendants 1 and 6 have now preferred this second appeal and the contentions which have been urged before us are that the Court of appeal below erred in law in its decision upon both the points of law to which reference has been made above. It is contended that upon a proper construction and interpretation of the solenama Ex. C and the decree Ex. B the Court below should have held that the defendants acquired a kaimi or permanent interest in the land, and that the plaintiff is not therefore entitled to a decree for khas possession. It has also been argued that the patta, Ex. A, granted by the plaintiff's predecessor conferred a heritable and permanent right. On behalf of the respondent on the other hand it has been contended that the provisions of the solenama are not to be found in the decree, and further that looking to the terms of the solenama itself there is nothing in this document and the use of the word kaimi which in any way supports the claim to a permanent right.

3. With regard to the first point it appears to me that the Courts below have erred in following the decision in 17 Calcutta Weekly Notes, to which reference has already been made. That decision has subsequently been dissented from in the cases of Ishan Chandra Banikya v. Moom-raj Khan A.I.R. 1926 Cal. 1101 and Mahomed Hossain Choudhary v. Khana, Kazi : AIR1928Cal606 . To the first of these decisions I was a party with my learned brother B. B. Ghose, J., while in the second case my learned brother Mitter, J. was a party. In those cases it was held that in view of the subsequent decisions [Hriday Nath Roy v. Ramchandra Barna Sarma, A.I. B. 1921 Cal. 34 (F.B.) and Gora Chand Haldar v. Prafulla Kumar Roy : AIR1925Cal907 of the Pull Bench of this Court the view of the law taken in the case of Sarjug Sharan v. Dukhit [1913]18 I.C. 809 can no longer be sustained. Speaking for myself I see no reason to alter the view which I then expressed, and in my opinion, if this decree granted a permanent right, it cannot now be held to be a nullity as having been made without jurisdiction. So far as the patta Ex. A is concerned it is no doubt of little assistance to the appellants. The right is described therein as ''sanba sani osat jotedari' right. The word kaimi is not used in this instance and the only indication of permanency is towards the end of the document where it uses the words:

Properties owned by you and your heirs ac-cording to the law in force at the time.

4. Further, so far as this document is concerned the objection must be held to be valid that it was open to the parties to create by it something which was contrary to the statute. Indeed, it was conceded by the learned advocate for the appellants that, if they had to rely on the patta alone, they would have no answer to the plaintiff's claim for ejectment. The decree however stands on a different footing, and, if it be held to confer a permanent right upon the defendants, then there can be no doubt in my opinion that the plaintiff cannot obtain a decree for ejectment. Looking to the terms of the solenama the words used in para. (3) thereof are 'sanba sani kaimi osat jotedari' right.'. It may be said that these words are to some extent contradictory in terms as the words 'sanba sani' and 'osat' are in conflict with the use of the expression kaimi connoting permanency. The word 'kaimi,' however plainly indicates a permanent right and it seems to me to leave no room for doubt that the intention was to confer a right of that nature.

5. The contention urged on behalf of the respondent that the terms of the solenama are not to be found in the decree appears to be without substance. It is true that the solenama has not been incorporated in the decree; but on the other hand, it is stated clearly in the decree that it is based upon the terms of the rafanama. That being so, it seems to me that it amounts practically to the same thing as if the solenama had been incorporated in the decree.

6. With regard to the other point urged on behalf of the appellants in regard to the decree Ex. C in my judgment the decree in the previous suit under Section 66, Ben. Ten. Act cannot operate as res judicata so far as to bar a decision upon the question of status which has bean set up in the present case.

7. In the result therefore I am of opinion that the decision of the Court of appeal below cannot be sustained upon either of these points. The judgment and decree of the lower appellate Court must be set aside and so far as they confirm the judgment and decree of the first Court in respect of the plaintiff's claim for khas possession of the land in suit after eviction of the defendants and as regards mesne profits and costs. In other respects the judgment and decree of the Courts below are confirmed. The appellants are entitled to their costs in all Courts.

Mitter, J.

8. I agree with my learned brother that this appeal should be allowed and the plaintiff's claim for khas possession and mesne profits should be dismissed. The appeal arises in a suit for ejectment brought by the plaintiff on the allegation that the defendants were under-raiyats and that their under-raiyati was determined by service of notice to quit. In answer to this the defendants raised the contention that they had a right of occupancy by reason of a solenama decree in a previous suit. By the solenama decree the defendants were declared to be 'sanba sani kaimi osat jotedari raiyats' and the defendants contended that under the word kaimi ' which means parmanency of occupation they have the status of an under-raiyat with a right of occupancy or a permanent right. The Courts below have overruled this defence on the ground that as the settlement effected by the solenama contravened the provisions of S. 85, Ben. Ten. Act as it stood before the recent amendment, the solenama decree was without jurisdiction and consequently no right could be transferred by it.

9. In second appeal this view has been attacked by the learned advocate for the appellants and it is said that this solenama could not be attacked except by a proper proceeding taken to set aside the solenama decree either by way of an appeal or review and that it could not be attacked collaterally in the present suit. The Courts below relied on a decision of this Court in the case of Sarjug Sharan v. Dukhit and undoubtedly that decision supports the view taken by the Courts below. But since that decision there have been two Pull Bench decisions of this Court in which it has been held that a decree passed under circumstances similar to the present cannot be regarded as a nullity. The Court which passed the solenama decree had jurisdiction over the subject-matter of the suit and had jurisdiction over the parties and merely because it sanctioned the compromise which is illegal it could not be said that it acted without jurisdiction. As has been pointed out by their Lordships of the Judicial Committee in the case of Malkarjun v. Narhari [1900] 25 Bom. 337 the Court had jurisdiction to decide wrongly or rightly. The mere fact that it arrived at a wrong decision and gave effect to a compromise which was not legal does not take away the Court's jurisdiction to pass a decree. It has been pointed out in the two cases to which reference has been made by my learned brother since the decision in Sarjug Sharan v. Dukhit that that decision cannot be regarded as good law in view of the two Pull Bench decisions [Hridayi Nath Ray v. Ramchandra Barma Sarma A.I.R. 1921 Cal. 34 (F.B.) and (Gora Chand Haldar v. Prafulla Kumar Roy : AIR1925Cal907 to which reference has been made in the decision to which I was a party which has been reported shortly in Mohammad Hoossain Chaudhury v. Khana Kazi : AIR1928Cal606 . I need not repeat the reasons which I then gave for coming to the conclusion that the decree passed under circumstances such as in the present case cannot be regarded as a nullity. The view of the Courts below must therefore be regarded as unsound and if this solenama decree is a good decree the result is that the defendant gets the status of a kaimi osat jotedari under-raiyat and has a good defence to offer to the claim for ejectment made by the plaintiff.

10. The other point raised is that the lower appellate Court has based its decision on the plea of res judicata. The plea of res judicata arose in this way. There was a previous rent suit numbered 1509 of .1928 for arrears of rent in respect of this osat raiyati for the years 1323 to 1326 B. S. against Fazler Rahaman the predecessor of the present defendant. In that suit for rent there was a prayer for ejectment under Section 66, Ben. Ten. Act, and the claim for ejectment was decreed. The rent which was in arrears was however paid so that the decree for ejectment was not executed. It is contended on behalf of the respondent in support of the judgment of the Court of appeal below that this decision operates as res-judicata and prevents the defendant from raising the defence that the osat-raiyati is not a permanent osat-raiyati, or in other words, it is not an ejectable osat-raiyati. The question of res judicata was not raised in the Court of first instance and the decree in the rent suit to which I have already referred was. only relied on as a piece of evidence.. The lower appellate Court has given to it larger effect and it has come to the conclusion that this decree operates as res judicata. It appears however that. under Section 66, Ben. Ten. Act, a suit of this kind for rent and for ejectment from failure to pay rent can be brought against an under-raiyat having the right of occupancy for if one examines the language of Section 66 it appears clear that an under-raiyat with a right of occupancy is not exempted from the provisions of that section. The section so far as it is material for the present purpose runs as. follows:

Where arrears of rent remain due from a* tenant not being a permanent tenure-holder a. raiyat holding at fixed rates or an occupancy-raiyat the landlord may, whether he has obtained a decree for recovery of arrears of rent or not and whether he is entitled to eject the tenant or not can institute a suit to eject the. tenant.

11. There is no exception in favour of an under-raiyat who has a right of occupancy. The Bengal Tenancy Act in some sections draws distinction between the right of an occupancy raiyat and the right of an under-raiyat with a, right of occupancy, for instance, reference may be made to the provisions of Section 113, Ben. Ten, Act, where this distinction is drawn. As has been pointed out by the learned Chief Justice Section 66 in terms does not preclude a suit from being]' brought against an under-raiyat with a right of occupancy. Therefore a decree can be passed under Section 66 against such an under-raiyat notwithstanding permanency of his tenancy. But the mere fact that a decree was made in such a suit does not lead one to the conclusion that the question of status of in under-raiyat, namely, that he was liable to be ejected is conclusive in the present case. The decree could be made in spite of the finding that the under-raiyat was one with a right of occupancy. There seems to be no substance in the plea of res-judicata on which the lower appellate Court based its decision to some extent.


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