1. These appeals arise out of suits for ejectment of the defendants from certain homestead lands in the town of Brahmanberia. The suits were decreed by the Court of first instance, and the decrees were confirmed on appeal by the lower Appellate Court. The defendants Nos. 2 and 3 have appealed to this Court.
2. The plaintiffs alleged that they acquired a right to the lands in suit by purchase from one Kamini Kumar Das who had obtained two mokurari leases from one Channu Mia and others, the owners of the 1/3rd share of the Taluks Manik Bibi and Asadulla Bibi Somera within which the lands were situate. The defendants denied that the lands appertained to the Taluks. Manik Bibi and Asadulla Bibi Somera as alleged by the plaintiffs, and asserted that they appertained to the 2/3rds share of Taluk Asadulla Bibi Somera owned by Haidar Ali and others, the lands of which share are found to be distinctly demarcated from the 1/3rd share and to form a separate estate. They further pleaded that the persons who granted the mokurari leases were not the sole owners of the taluks to which the lands were alleged by the plaintiffs to appertain. Those questions, however, have been decided by the Courts below in favour of the plaintiffs and we agree with the Courts below on these points.
3. The defendant Ananda Mohan Saha purchased the lands in dispute in suits Nos. 141 and 43 in his own name and took leases in the other two cases in the benami of the defendant Bepin from the former tenants. The defence substantially was that the former tenants had permanent and transferable rights to these lands, and that in any case a 15 days' notice to quit was not sufficient in law to determine the tenancies. Some other pleas were taken in defence, but they were overruled and the findings on these points have not been challenged in appeal.
4. The questions for consideration in these appeals are, first, whether the tenancies were permanent, second, even if not permanent, whether they are transferable, third, even if they are transferable, whether a 15 days' notice to quit is sufficient in law to determine the tenancies, and lastly, whether disclaimer of title amounts to waiver of notice.
5. The first question should be dealt with in each of the cases separately. In Appeal No. 750 (Suit No. 141) the land was purchased by Ananda from one Chandra Mohon, the defendant No. 2, in 1904. The land was described as a raiyati jote appertaining to Taluk Asadulla Bibi Somera (without mentioning the name of the landlord) and bearing a rent of Re. 1-12-0. The Court of first instance after a full discussion of the evidence found that the land did not appertain to any jama of Rs. 1-12-0, nor was it held under Haidar Ali and others, the owners of 2/3rds share of Taluk Asadulla as stated by the defendants, but appertained to a jama of Rs. 2-12-0 held under Taluk Manik Bibi, and that although the tenancy had been the subject of inheritance from father to son, it was not proved that it was held at an uniform rent or that it had been the subject of transfers, or that there were any substantial structures on the land, there being only a tin-shed on the land before the purchase by Ananda. Ananda erected two other tin-sheds and a pucca room after his purchase in 1904, but this was not to the knowledge of the plaintiffs' lessors. The defendant is said to have obtained permission to erect the structures on the land from Haidar Ali, the owner of the 2/3rds share of the taluks, which had nothing to do with the 1/3rd share of the taluks to which the lands really appertain. The Court of Appeal below, though it did not discuss the questions fully, agreed with the conclusions arrived at by the Court of first instance on the points. The learned Judge, it is true, refers to the fact of the origin of the tenancy not being known, as if it was against the permanency of the tenancy, but having regard to the other facts found by the Courts below, we are unable to hold that the Courts below were wrong in holding that the tenancy of Chandra Nath was not a permanent one.
6. In Appeal No. 894 (Suit, No. 142) the land was held by one Sohagi for about 30 years, and Ananda obtained an ijara lease for 100 years from her in the name of the defendant No. 4, Bepin. The Court of first instance held that it was practically a sale, there being no rent reserved and no mention of any reversion of the land to her at any time. It was said that one Chandrakala, the paternal aunt of Sohagi, made a gift of the land to her in 1901. But it has been found against the defendants. It has also been found that there are no circumstances justifying the presumption that the tenancy was a permanent one.
7. In Appeal No. 896 (Suit No. 144) also, the land was taken in ijara lease for 100 years from the heirs of one Ram Prosad. The holding is described as raiyati basat bhita, no rent is reserved and no reversion is mentioned. The grantors of the pattah abandoned the homesteads immediately after the grant making no provision for the landlord's rent, and as in the last case the pattah is virtually a deed of conveyance. The holding was inherited by the heirs of Ram Prosad, but no other circumstance has been found which may lead to a presumption of permanency.
8. In Appeal No. 895 (Suit No. 143) the land was held by Ram Prosad and was purchased from his son and nephew in 1907 by the defendant Ananda Mohan. The kobala states that it was a mourasi mokurari jama standing in the name of Ram Prosad bearing a rent of 14 annas payable to one Chandra Nath Saha. Some rent-receipts were filed to show that Ram Prosad held the land as a mokurari jama. The rent receipts were missing from the record, and secondly, evidence was adduced with regard to these Receipts. The receipts were filed only from the year 1295 and none of them granted by the malik Channu Mia and others. The Munsif discussed these receipts and the collection papers and disbelieved them. He further found that there was a mandir on the land but it was a dilapidated structure and there was no satisfactory evidence that the tenants built the mandir, and came to the conclusion that the tenancy had not been proved to be a permanent one.
9. The Munsif found on a detailed consideration of the evidence that the defendants failed to prove that the tenancies were permanent. The learned District Judge did not discuss the evidence fully, but agreed with the findings arrived at by the Munsif. The judgment being one of affirmance, we are not disposed to remand the case. The defendants, it is to be observed, not only denied the title of the plaintiffs and their lessors (the (rue owners), but set up tenancies under Haidar Ali and others who are found to have no connection with the lands, and actually produced false receipts to show payment of rent to them.
10. The tenancies not being permanent, the next question is whether they are transferable. If the tenancies are governed by the Transfer of Property Act, then there is no doubt that the interest of the lessee can be transferred absolutely or by way of sub-lease as laid down by Section 108, Clause (j), of that Act. The tenancies, however, were created before the passing of the Transfer of Property Act. Section 2, Clause (c), of that Act lays down that nothing in the Act shall be deemed to affect any right or liability arising out of a legal relation constituted before the Act came into force or any relief in respect of such right or liability. We think that in the present cases, the legal relation between the plaintiffs' lessors and the defendants' vendors was constituted before the passing of the Transfer of Property Act. The provisions of that Act, therefore, do not apply to the present case, and Section 108, Clause (j), of the Act does not affect the rights and obligations of the parties. See Madhu Sudan Sen v. Kamini Kanta Sen 32 C. 1023 : 9 C.W.N. 895 and Hiramoti Dassya v. Annoda Prosad Ghosh 7 C.L.J. 553. The tenancies in the present cases were tenancies from year to year before the passing of the Act and it is contended on behalf of the appellant that they are tenancies from year to year subsequent to the passing of the Act. In the first of the two cases cited above the tenancy was also from year to year, and in the second it was a non-permanent tenure and, therefore, appears to have been from year to year. It was held in those cases that the provisions of the Transfer of Property Act did not apply. That being so, the rights of the lessee have to be determined with reference to the law as it stood before the passing of the Transfer of Property Act. Now, previous to the Transfer of Property Act tenancies from year to year of homestead lands were not transferable except by custom. In the case of Madhu Sudan Sen v. Kamini Kanta Sen 32 C. 1023 : 9 C.W.N. 895 cited above Maclean, C.J., observed (Mitra, J., concurring): 'That the incident of non-transferability was common to ordinary tenancies of agricultural lands and tenancies from year to year of homestead land before the passing of the Transfer of Property Act was held in Hari Nath Karmakar v. Raj Chandra Karmakar 2 C.W.N. 122 and we have taken the same view in Second Appeals Nos. 339, 448, 449 and 450 of 1903 decided on the 3rd April 1905. The party alleging transferability had to prove a custom to that effect.' The same view was taken in Hanuman Prasad Singh v. Deo Charan Singh 7 C.L.J. 309 and Hiramoti Dassya v. Annoda Prasad Ghosh 7 C.L.J. 553 referred to above.
11. The tenancies, therefore, were not transferable except by custom. The Court of first instance found that the custom of transferability was not proved. The learned District Judge, holding that the onus was upon the plaintiffs to prove a custom of non-transferability, found that the plaintiffs failed to prove a custom that such tenancies are not transferable. The learned Judge is obviously wrong, as the onus is upon the defendants who set up the custom of transferability to prove that it existed and it is found by the Munsif that the evidence on both sides negatived the existence of such custom before 1882 in respect of homestead land. It is unnecessary, therefore, to remand the cases for a finding on the point by the lower Appellate Court.
12. It is contended that in two of the cases there were no transfers by way of sales, the defendants in those two cases having obtained ijara and that there was nothing in the law previous to the Transfer of Property Act to show that a tenant could not sub-let. But assuming that homestead lands held from year to year could be transferred by way of sub-letting before the passing of the Transfer of Property Act, we think the so-called leases are really sales of the leasehold interest. The ijaras, we have seen, are stated to be for one hundred years for a large amount of consideration, no rent is reserved and there is no mention of reversion of the land to the grantors at any time. There is no provision for payment of rent to the landlord. It may be said that a term being mentioned there was no absolute transfer of the tenant's interest. But the Munsif has found (and the finding has not been displaced on appeal) not only that the so-called ijara leases are really sales out and out from the terms of the documents, but that the tenants have abandoned the lands without arranging for payment of rent and no rent has been paid by the tenants (grantors of the ijaras) ever since the ijaras. Upon the facts found and looking at the substance of the transactions, we are of opinion that the ijaras were a mere device, that they were really assignments, and that in any case there has been abandonment of the lands by the tenants.
13. We are accordingly of opinion that the defendants did not acquire any right under the conveyances in two of the cases or under the so-called ijatra leases in the two others.
14. That being so, they are liable to be ejected as trespassers and in this view it is unnecessary to consider the question raised on behalf of the appellants, viz., whether a 15 days' notice to quit is sufficient, or the question whether a disclaimer of title amounts to waiver of notice raised on behalf of the respondents.
15. The result is that the appeals are dismissed with costs.