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Sm. Lilabati Dasi, Widow of Hari Mohan Ghose and ors. Vs. Chitpore Golabari Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1938Cal481
AppellantSm. Lilabati Dasi, Widow of Hari Mohan Ghose and ors.
RespondentChitpore Golabari Co. Ltd. and ors.
Cases ReferredRai Charan Mandal v. Biswa Nath Mandal
Excerpt:
- .....cannot be treated as a tenancy in respect of which the plaintiffs were raiyats at a fixed rate of rent. the plaintiffs' claim must therefore fail as far as this suit is concerned and the appellants are entitled to succeed in this appeal.3. the main point for consideration in connexion with the remaining appeals is whether or not the plaintiffs-respondents are entitled to the benefit of the presumption as to the fixity of rent arising out of section 50, ben. ten. act. the courts below held that the plaintiffs have succeeded in showing that their rate of rent has remained unchanged during the 20 years immediately before the institution of the suits out of which these appeals arise and that they were therefore entitled to the benefits of the presumption mentioned above. it is however.....
Judgment:

Edgley, J.

1. These appeals arise with reference to a series of oases which were instituted by the plaintiffs for the purposes of correcting certain entries in the Record of Rights in which the plaintiffs had been described as settled raiyats in respect of their holdings. The plaintiffs claim that they are raiyats of the holdings at a fixed rate of rent. Seven of these cases were instituted by the Chitpore Golabari Company Ltd. who according to their case acquired their interest in the disputed tenancies by virtue of their purchase of these holdings in 1919. The plaintiffs in the other two suits are tenants whose interests were transferred to the Chitpore Golabari Company after the institution of the suits in question. The defendants were the landlords of the holdings in respect of which these suits were instituted and their contention is that the plaintiffs are ordinary settled raiyats and they maintain that it has not been established that they were tenants of the holdings at a fixed rate of rent. Both the Courts below have found against the defendants who have appealed to this Court.

2. The first point which has been urged by the learned advocate for the appellants arises with reference to Suit No. 10247 of 1932 (Appeal No. 1314 of 1935 of this Court). With regard to the lands covered by this particular suit, it appears that the defendants in the suits out of which these appeals arise instituted an ejectment suit (No. 78 of 1930) against the plaintiffs and succeeded in obtaining a decree in that ejectment suit on 3rd August 1931. This decree was ultimately confirmed on appeal to this Court on 21st June 1935. It was held then that the plaintiffs in the suit now before this Court were liable to ejectment as trespassers as they were transferees of a non-transferable holding. It has been finally argued by the learned advocate for the respondents that the principle of res judicata cannot apply in this particular case because the same questions were not in issue before the High Court as were in issue in Suit No. 10247 of 1932. In this connexion I have perused the judgment of the High Court dated 21st June 1935 which I have admitted as an additional evidence for the purpose of this appeal in order to enable me to pronounce judgment in this case. I find from a reference to this judgment that the whole question of the status of the plaintiffs- respondents who were defendants in Suit No. 78 of 1930 was fully considered in the litigation which culminated in appeal from Original Decree No. 76 of 1932 and as regards the status of these persons the same questions appear to have been substantially in issue in Suit No. 10247 of 1932. I therefore hold that as regards the subject-matter of Suit No. 10247 the question of the plaintiffs' status must be governed by the decision of this Court in the appeal mentioned above and as it was decided in that appeal that the plaintiffs were liable to ejectment it follows that the lands covered by Suit No. 10247 of 1932 cannot be treated as a tenancy in respect of which the plaintiffs were raiyats at a fixed rate of rent. The plaintiffs' claim must therefore fail as far as this suit is concerned and the appellants are entitled to succeed in this appeal.

3. The main point for consideration in connexion with the remaining appeals is whether or not the plaintiffs-respondents are entitled to the benefit of the presumption as to the fixity of rent arising out of Section 50, Ben. Ten. Act. The Courts below held that the plaintiffs have succeeded in showing that their rate of rent has remained unchanged during the 20 years immediately before the institution of the suits out of which these appeals arise and that they were therefore entitled to the benefits of the presumption mentioned above. It is however contended on behalf of the appellants that this presumption has been rebutted in Suits Nos. 10243, 10244, 10245 and 10248 of 1932 by reason of the findings of the Courts below to the effect that the plaintiffs had acquired occupancy right in the holdings covered by the suits by means of adverse possession. Admittedly as regards these holdings, the transfers on which the plaintiffs base their claim took place in respect of the whole holdings in 1919 before the Bengal Tenancy Act was amended in 1928. It is argued that the continuity of the plaintiffs' tenancies was interrupted in 1920 by reason of the proceedings which were instituted in that year in respect of these holdings under Section 145 Criminal P.C. It is urged that the landlords who are the appellants to this Court did not recognize the sales to the plaintiffs of the disputed holdings in 1919 and that at any rate at that time they must be regarded as trespassers. It is, however, admitted that the plaintiffs were allowed to retain possession of their holdings in 1921 as a result of the decision of the Magistrate in the proceedings under Section 145, Criminal P.C. The Magistrate's judgment is dated 24th March 1921. Since that date, the plaintiffs have remained in adverse possession of the holdings in suit and it is argued that the interests which they have acquired in the holdings based on adverse-possession are entirely distinct from those of their predecessors; and it is in fact contended that they have now acquired the status of occupancy raiyats in respect of an entirely new tenancy based not upon their purchases of 1919 but upon their adverse possession dating from February 1920.

4. There can however be no doubt in these cases that the plaintiffs have succeeded in discharging their initial onus which lies on them for the purpose of enabling them to avail themselves of the benefit of the presumption arising out of Section 50, Ben. Ten. Act. They admittedly hold the disputed lands as tenants at the present time, and they are shown as such by right of purchase in the Record of Eights. It is also-clear that the plaintiffs originally came into possession of these holdings by virtue of purchases from their predecessors in 1919 and that although their right to retain possession was contested by the defendants in 1920, nevertheless they have been kept in possession by the Magistrate's order in the case under Section 145, Criminal P.C. Their possession remained undisputed from that date until the institution of the suits out of which these appeals arise. It is argued on behalf of the appellants that the plaintiffs cannot obtain the benefit of the presumption arising out of Section 50, Bengal Tenancy Act because their purchases were never recognized by the landlords and they merely came into possession of their holdings as trespassers. In this connexion some reliance has been placed upon the observations of Teunon J., in Abhoy Sankar Mazumdar v. Rajani Mandal (1919) 6 AIR Cal 611. In that case the learned Judge made the following remarks:

No doubt the purchaser of a non-transferable holding cannot claim recognition by the landlord as a matter of right; but if he obtained recognition from the landlord whether by payment or otherwise, then in the absence of special circumstances, which do not here appear, he is admitted into the original tenancy with all its incidents and becomes the successor in interest of his vendor.

5. On the basis of these observations and certain other decisions of this Court, it is contended that in order to enable the plain, tiffs to tack on their period of possession to that of their predecessors in order to obtain the benefit of Section 50, Bengal Tenancy Act, recognition by the landlords was a sine qua non. The facts however of these cases are peculiar. It appears that in 1919 the plaintiffs came into possession of the disputed holdings as purchasers from their predecessors in the assertion of a claim that they had purchased a transferable tenancy right. It is true their claim was not recognized by the landlords at that time but it is significant that at any rate in so far as the holdings are concerned with which we are dealing in Appeals Nos. 1311 to 1313 and 1315, the landlords took no steps to evict the plaintiffs from these holdings beyond instituting proceedings against them under Section 145, Criminal P.C. As already pointed out, even after the order of the learned Magistrate dated 21st March 1921 had been obtained, the plaintiffs were allowed to remain in peaceful possession of these holdings until the date when the suits out of which these appeals arise were instituted. During the whole of this period they appear to have maintained the position that by virtue of their purchases in 1919 they had acquired a transferable tenancy interest in these holdings and this was clearly a claim which was capable of maturing into a distinct right by lapse of time. The plaintiffs are therefore now in the same position as they would have been if their tenancies had been recognized by the landlords in 1919 and this being the case, they are, in my opinion, governed by the principles enunciated by Teunon J. in Abhoy Sankar Mazumdar v. Rajani Mandal (1919) 6 AIR Cal 611. It follows therefore that they must be regarded as having stepped into the shoes of their vendors who must be regarded as their predecessors-in-interest within the meaning of Section 50 (2), Ben. Ten. Act.

6. It is clear that for at least 20 years immediately before the institution of these suits the rate of rent had not been changed in respect of these holdings. It is true that the plaintiffs during the period of their possession of these holdings did not actually pay rent to the landlords. But this was merely on account of the latter'a unwillingness to receive rent from them. In this connexion, it was pointed out by Mookerjee J. in Mohini Kanta v. Preo Nath (1922) 9 AIR Cal 141 that:

The tenant is not required to establish actual payment of rent during the 20 years at an uniform rate; he has to establish that he and his predecessors-in-interest have held at a rent or rate of rent which has not been changed during the 20 years immediately before the suit or proceeding. This involves a real distinction; for, a person may hold as a tenant, even though he does not actually pay the rent agreed upon to his landlord.

7. The learned Judge then goes on to say:

It has not been and in our opinion, cannot be maintained that the omission to pay rent or behalf of the tenant or refusal to receive rent on the part of the landlord causes a cessation of the tenancy.

8. In the circumstances stated above, I am of opinion that the plaintiffs have shown that there has been a complete continuity in the tenancy from the time of their predecessors and that they are entitled to the benefits of the presumption arising out of Section 50, Ben. Ten. Act. The onus would lie very heavily on the defendants to rebut this presumption. In my view it cannot certainly be said that they have succeeded in doing so by relying on the fact that the plaintiffs have perfected their title by remaining in adverse possession of the disputed holdings since 1920. The main factor which a tenant is required to establish in order to get the benefits of Section 50, Ben. Ten. Act, is the continuity of the tenancy at a fixed rate of rent for at least 20 years and in a case such as the one which we are now discussing, in which the plaintiffs entered upon the disputed land by purchase of the interests of their predecessors and remained in possession of the holdings as tenants for more than 12 years without paying an increased rate of rent in respect of these holdings they have, in my opinion, established continuity of tenure which the law requires and are entitled to add the period of their possession to that of their predecessors for the purpose of obtaining the benefit of the presumption under Section 50, Ben. Ten. Act.

9. It would of course be open to the land-lords to rebut the presumption arising out of Section 50, Ben. Ten. Act, by proving that the tenancies had in fact been created after the Permanent Settlement. In this case an attempt was made to do this by showing that certain account-papers relating to mouza Bujali, within which these tenancies are situated, viz., Exs. A to E which date from the years 1783 to 1824, contain no mention of any of the holdings with which we are now concerned. As pointed out however by the lower Appellate Court, evidence of this kind is of a negative character and it is not safe to draw from it any inference that these tenancies could not possibly have existed at the time of Permanent Settlement. There is no evidence to the effect that surveys which took place in the years to which Exs. A to E relate were so comprehensive that all the subordinate interests of this mauza must have been mentioned therein. Further it is clear, that, at the time when the Record of Eights was prepared, many more tenancies were found to exist in mauza Bujali than existed in the years covered by Exs. A to E. It may therefore be inferred that some of these tenancies may have been formed by split-ting up the original holdings without increasing the rate of rent. It must also be remembered that the tenants themselves were not parties to these proceedings to which Exs. A to E relate, and their evidentiary value as against the plaintiffs' interest is only very slight. If a complete history of each particular tenancy were forthcoming, the position might have been otherwise, but as things stand now, I do not think that the landlords have succeeded in rebutting the presumption arising out of Section 50 B. T. Act by means of these papers.

10. The next point urged by the learned advocate for the appellants is that, in any case, the plaintiffs have not succeeded in raising the presumption under Section 50, Ben. Ten. Act by producing a sufficient number of rent-receipts to show that they have paid rent for the requisite number of years at an unchanged rate of rent as required by the statute. He points out that since the transfer to the plaintiffs in 1919 admittedly no rent receipts are available because the landlords have refused to accept rent from the plaintiffs. As regards the period prior to 1919 it is argued that those rent-receipts which have been produced do not actually cover a period of twenty years except in four suits only. I do not consider however that there is any force in this contention because all that is necessary for the plaintiffs to show initially as regards payment of rent under Section 50, Bengal Tenancy Act is that the rate of rent has not been changed during the twenty years immediately before the institution of these suits. This they have certainly succeeded in doing. The mere fact that the landlords did not accept rent from the tenants after the plaintiffs had entered into possession of the holdings in 1919 cannot be of any advantage to them and I consider that this case is covered by the principle enunciated by Mookerjee J., in Mohini Kanta v. Preo Nath (1922) 9 AIR Cal 141 to which reference has already been made. As I have already pointed out, the plaintiffs must be regarded as having stepped in the shoes of their transferors in the year 1919 and these persons must be regarded as their predecessors-in-interests. This being the case, this argument must fail.

11. The fourth point which has been raised by the learned advocate for the appellants relates to Suits Nos. 10279 and 10281 and Appeals Nos. 1317 and 1318. The plaintiffs in both these suits are Sarat Chandra Mandal and Sashi Bhusan Mandal. The suits in question were filed on 2nd November 1932. It is contended that these suits are not maintainable on account of defect of parties for two reasons. First, it is urged that Alhadi Dassi transferred her interest in these holdings to the Chitpore Golabari Company Limited in 1926. Alhadi was herself made a pro forma defendant, namely, pro forma defendant 5, but the transferees of her interest, namely, the Chitpore Golabari Company Limited were not made parties. The second point urged as regards the alleged defect of parties is said to arise on account of the fact that Sarat Chandra Mandal transferred his interest to the Chitpur Golabari Company Limited, in April 1933, and that this being the case the transferee Company should have been made a party to these suits. Both the Courts below held that the omission to make the Chitpur Golabari Company Limited parties to these suits was immaterial and the suits were not bad on this account.

12. With regard to the first of these objections, it must be remembered that the two suits in question, namely Suits Nos. 10279 and 10281, were suits instituted by Sarat and Sashi for the purpose of correcting certain entries in the Record of Eights. In suits of this nature, it would of course have been necessary that the tenants and landlords actually mentioned in the Record of Eights should be made parties, but this has actually been done. To my mind it cannot be said that the decree obtained in a suit of this nature without making a party the transferee of the interest of any of the tenants would necessarily be infructuous. In this connexion it has been pointed out by the learned advocate for the respondents that having regard to the provisions of Section 106, Ben. Ten. Act, any person interested in securing the correction of an entry in the Record of Eights would be competent to institute the requisite suit. In these circumstances, I am of opinion that there is no substance in the first objection and that having regard to the provisions of Order 1, Rule 9, Civil P. C, such suits cannot be regarded as non maintainable on account of the defect of parties. As regards the second objection I am also of opinion that this objection cannot be sustained. Admittedly the transfer by Sarat Mandal to the Chit-pore Golabari Co. Ltd., took place in April 1933, that is after the institution of the suits and in these circumstances the case appears to be governed by the principles laid down by Mookerjee J., in Rai Charan Mandal v. Biswa Nath Mandal (1915) 2 AIR Cal 103 in which it was held that the trial of a suit cannot be arrested merely by reason of the devolution of the interest of the plaintiff and that the successor-in-interest may, if he chooses, obtain leave of the Court under Order 22, Rule 10, Civil P.C. to continue the suit, but if he does not do so, the original plaintiff may continue the suit and his successor will be bound by the result of the litigation. Having regard to what has been stated above, the fourth ground urged on behalf of the appellants must fail.

13. The fifth argument on behalf of the appellants relates to Suit No. 10248 of 1932 and Appeal No. 1315 of 1935. It is contended that in the Record of Eights two holdings, namely a jama of Rs. 6-3.0 and another jama of Rs. 1.2-9 have been amalgamated and recorded as one holding at a rental of Rs. 7.5-9. But it is urged that it has not been shown that rent has been paid in respect of the amalgamated holding for a period of 20 years as required by Section 50, Ben. Ten. Act. With regard to the two component parts of the amalgamated holding, two rent receipts have been filed which relate to the year 1912. Since that date, there has been no increase of rent in respect of either of these two jamas and, this being the case, the plaintiffs are clearly entitled to the benefit of the presumption arising out of Section 50, Ben. Ten. Act by reason of the third Clause of that section which states that the operation of this section, so far as it relates to land held by a raiyat, shall not be affected by the fact of the land having been separated from other land which formed with it a separate holding, or amalgamated with other land into one holding. This point must therefore fail. The next argument' urged on behalf of the appellants relates to Suits Nos. 10259 and 10302 of 1932 (Appeals Nos. 1316 and 1319 of 1935). With regard to these particular suits, the learned advocate pointed out that on 29th July 1933 certain cosharer defendants applied to be transferred to the category of the plaintiffs and that their request was granted on 5th August 1933. An additional written statement was then filed on 10th August 1933. It is argued in this connection that as a period of four months had elapsed since the final publication of the Record of Rights the cosharer pro forma defendants could not be transferred to the category of the plaintiffs and that no decree could be passed in their favour. I do not consider, however, that there is any force in this objection. The Court clearly had jurisdiction to order the transfer under Order 1, Rule 10, Civil P. C, and having regard to the provisions of Section 22 (2), Limitation Act, no question of limitation can arise. This argument on behalf of the appellants must therefore fail.

14. The last argument put forward on behalf of the appellants is with reference to suits Nos. 10244,10245 and 10259 (Appeals Nos. 1312, 1313 and 1316 of 1935). With regard to the holdings covered by these suits, before the institution of the suits under Section 106. Ben. Ten. Act, the defendants had instituted a title suit for the ejectment of the Chitpore Golabari Company Ltd. namely Title Suit No. 65 of 1932. The defendants failed in that suit and an appeal against the decision of the lower Appellate Court is now pending in this Court. As the Title Suit No. 65 of 1932 bad been instituted and was pending at the time of the institution of the suits under Section 106, Ben. Ten. Act, out of which these appeals arise, the defendants applied to this Court to the effect that the suits under Section 106 of the Act might be stayed but their prayer was, rejected. With regard to this point, the Assistant Settlement Officer found that none of the issues raised in the title suit covered any of the matters mentioned in Sections 111-B(1), Ben. Ten. Act, and the view of the learned District Judge was to the same effect. I am of opinion that the decision of the Assistant Settlement Officer in this respect was correct. In any ease the Assistant Settlement Officer admittedly refused to stay the suits under Section 106, Ben. Ten. Act before he framed issues in those suits. If the defendants considered that his order with reference to these suits was without jurisdiction, they could have been at liberty to move this Court by way of an application in revision under Section 115, Civil P.C. This however they failed to do and I am of opinion that this is a matter which should not be re-opened at the present stage. The result is that the decision of the lower Appellate Court is affirmed in all the appeals except Appeal No. 1314 of 1935. The latter appeal is allowed and the decree of the lower Appellate Court out of which this appeal arises is set aside. The plaintiffs' claim to be recorded as raiyats at a fixed rent in respect of the tenancy covered by Suit No. 10247 of 1935 is rejected. The appellants are entitled to their costs of all Courts incurred in connexion with this particular case. The remaining eight appeals are dismissed with costs. The hearing fee of this Court is assessed at one gold mohur in Appeal No. 1314 of 1935 and a consolidated hearing fee is assessed at eighteen gold mohurs in the case of the remaining eight appeals.


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