Patna High Court
Bara Lal Durga Prasad Nath Sahdeo vs Bhaju Mian And Anr. on 2 August, 1955
Equivalent citations: AIR1955PAT499, 1955(3)BLJR506, AIR 1955 PATNA 499
JUDGMENT Raj Kishohe Prasad, J.
1. These two appears are by the same person, but against different respondents; and as a common point of law arises in both the appeals they have been neard together at the instance of both the parties.
2. These two appeals, which are by the same plaintiff, arise out of the two suits in a judgment. The plaintiff is the present proprietor of the estate, known as 'Tori Estate', within, which lies the village in suit. This estate during the life time of the father of the present plaintiff, who was the previous proprietor, was taken over for management under the provisions of the Chotanagpore Encumbered Estates Act in the year 1901. The estate was released on 4-11-1909, but was again taken over, in the life time of the previous proprietor himself, on 5-1-1944, and since then the estate is under the management of Chotanagpore Encumbered Estates.
The two suits were filed on behalf of the plaintiff through the Manager of the Chotanagpore Encumbered Estates, and the present appeals have also be,en filed through the General Manager of the above estate on behalf of the plaintiff,
3. In P. A. 508 of 1947, which arises out of Title Suit 5/12 of 1946/1947, and which has been argued first, the disputed land was given in lease by the father of the present plaintiff under a registered document on 9-12-1917 under a 'Bemiadi' lease, on an annual rental of Rs. 137/13/- in cash and Rs. 4/8/- as price of two goats, besides cess, to the father of defendants 1 and 2. In F. A. 507 of 1947, which arises out of Title Suit No. 9/6 of 1945/1947, the lease was granted on 8-7-1917 to the father of the defendants of that suit, on the same terms, by the father of the, present plaintiff on an annual rental of Rs. 151, besides cess, and one he-goat worth Rs. 2/4/- and five seers of Ghee worth Rs. 5/-.
Both the leases were marked Ex. A in the respective suits. The defendants in the two suits are different persons. Both the suits were tried separately, but by the same Additional Subordinate Judge. In both the cases the premium taken by the plaintiff's father for granting the respective leases was Rs. 1,500/-.
4. In both the suits the plaintiff sought eviction of the defendants on a declaration that the 'Bemiadi' deeds, referred to above, by the father of the plaintiff in favour of the defendants father was hit by the provisions of Section 12A, Chotanagpore Encumbered Estates Act, and as such they were illegal and void, and consequently the defendants in each suit were trespassers at least from the time of the notices to quit, which were served on them on behalf of the plaintiff.
In F. A. 508 of 1947 the first notice to quit Was given to the defendants on 19-9-1941, and the second notice to quit was given on 12-9-1944, and the suit for ejectment was brought on 17-1-1946. IB F. A. No. 507 of 1947 the first notice to quit was given to the defendants on 19-6-1941, and the second notice to quit was given on 15-9-11944, and the suit for ejectment was brought on 11-5-1945.
5. The defence in both the suits was tbat the provisions of Section 12A, Chotanagpore Encumbered Estates Act, did not apply, and the lease in question in each suit was a permanent lease, and the suits were barred by adverse possession and acquiescence.
6. The learned Additional Subordinate Judge of palamau, who heard both the suits, dismissed both the suits, under separate judgments, holding that the lease granted by the proprietor in each suit was perfectly valid, inasmuch as he was under no legal disability in executing the same, and, that it was a permanet lease, and. therefore, the plaintiff was not entitled to eject the defendants. He further held that the question of the defendants' , title by adverse possession did not arise in ' view of his finding that the leases were permanent leases.
But even if it be held that the leases were void, then the plaintiff's suits were barred by adverse possession of the defendants, who were openly in possession of the leasehold property for more than 12 years to the knowledge of the plaintiff and his ancestor. On these findings the learned Additional Subordinate Judge dismissed the two suits on 30-8-47. The reasoning given in the two judgments are the same, because the two leases, as stated above, were practically on the same terms and conditions, except that the annual rental payable was different in each case.
7. Mr. Lalnarain Sinha, the learned Government Advocate, who argued these two appeals on behalf of the plaintiff appellant, has very fairly and rightly conceded that Section 12A of the Chotanagpore Encumbered Estates Act did not apply to the present case, and, therefore, the only point involved in the two appeals was whether the lease was a permanent one.
If this Court held that the two leases were not permanent ones, then obviously the two suits would be barred by the adverse possession of the defendants. The only point, therefore, which he has argued is that on a proper construction of the leases it was obvious that they were not permanent ones, but they were from year to year, and as such the defendants were liable to be evicted.
He has, as stated before, argued F. A. 508 of 1947 first, and submitted that the argument in this appeal applies to F. A. 507 of 1947 also, because the construction of the lease in this appeal will apply to the other appeal also, inasmuch as the lease in the two suits, although different, are on the same conditions, and, therefore, the same principles will apply to both.
8. In the first place, he has argued that the onus to prove permanent tenancy is on the person who alleged it, and as such it was for the defendants to prove permanent tenancy. In support of this point he relied on the case of -- 'Nainapillai v. Rammnathan', AIR 1924 P. C. 65 (A).
It cannot be, and has not been, disputed that when a tenant of lands, in a suit by his landlord to eject him from them, sets up a defence that he has a right of permanent tenancy in the lands, the onus of proving that he has such a right is upon the tenant. We have, therefore, now to see what kind of right was created by the lease itself in each case. I shall, therefore, now proceed to deal with the two appeals separately.
9. I shall take up F. A. 508 of 1947 first In this appeal the lease in question dated 9-12-1917, which was marked Ex. A in the suit, after omitting the descriptive portions of the parties and the land, runs thus:
"Tatta for indefinite period granted by Maharajadbirai Maharaj Kumar Saheb Shree Jagat Mohan Nath Sahdeva ..... to Shrec Dargahi Sab .....
on talcing Rs. 1500/- as nazrana money in respect of mauza Bandwa,......... the entire 16 annas of the mauza, original with dependency excluding mica, iron, copper, gold and silver mines etc. in all kinds of surface and sub-soil rights, together with jalkar, bankar, ahar, pckhar, reserviors, tanks, rivers, nalas, ditches, thora, culturable and parti lauds fruit bearing and non-fruit-bearing trees, with four boundaries, which is given in thika for an indefinite period (Bemiadi) descendible to legitimate male issue, with effect from 1974 Sambat at a fixed annual rent of Rs. 137/13/- excluding cesses which are assessed or may be assessed later on and 2 goats worth Rs. 4/-8/-.
It is desired that the said thikadars with their male legitimate issue should remain in possession and occupation thereof and properly cultivate the lands of the village and after payment of the above fixed rent etc. appropriate the entire produce either in kind or cash. They should pay the above fixed rent etc. without raising any objection on the ground of draught, inundation, destruction caused by wormeating and hail storms, instalment after instalment, year after year.
If they fail to pay the rent according to the instalments given below, they or their legitimate male heirs will he liable to pay interest at the rate of 25 per one hundered rupees, prevalent in the office of the hazur. No objection whatsoever will be entertained. If they do so, it will be deemed null and void. If there be any case of rioting, murder, dacoity and robbery, etc., within the leasehold property, the said thicadars and their legitimate male heirs are and will be responsible therefor. The thikadars and their legitimate male issue will pay the requisitions according to old customs and practice of the locality on the occasion of festivals. If any mica, coal, copper, iron, gold and silver mines etc. i.e., hidden articles be discovered on the surface or under the ground within jungle or hill or don, tanr or bari lands, houses or village the thikadars and their legitimate male heirs neither have nor will have any kind of right thereto. Hence, on receipt of the entire nazrana money and on taking kabuliat, I have executed the patta for an indefinite period, so that it may be of use when required."
The main argument of the learned Government! Advocate has been that the lease being a "bemiadi' lease (i.e. a lease fpr an indefinite period) cannot be considered a permanent one. He has, in support of his argument, relied on the case of -- 'Mt. Paishan Kuer v. Mt Tulsi Kuer', AIR 1917 Pat 46 (B), which is also referred to in the judgment under appeal. In that case Chapman, J., with whom Roe, J. concurred, held upon the terms of the lease itself, which was a 'bemiadi' patta, that it was not a permanent lease, and in doing so his Lordship observed as follows:
"The lease recites that as her husband had died recently and that as she could not personally fook after her affairs she apprehended that her Zamindari would be ruined and she accordingly granted a 'bemiadi' patta. The lease recites that the lessee, his heirs and successors should hold possession of the property and have right not merely in the surface but also in the minerals; that the lessor shall have the right to use such trees as she may require and that the rent shall bo payable to her and after her death to her daughter.
The word 'miad' is a word ordinarily used for the term of a lease. A 'bemiach' patta therefore means a lease without a term, or in the word of the learned Subordinate Judge not for any definite period. That being so, it appears to me to be impossible to infer from the mention of mineral rights, or of the heirs and successors of the lessee, or of the heir of the lessor, that the lease was a permanent one".
In the judgment itself the terms of the 'Tatta' have not been mentioned in detail. We, therefore, sent for the brief of the appeal, and looked into the entire document, which was the subject matter of construction in that appeal. In this case there was no payment of any premium at all. The lessee was a lady, who due to the recent death of her husband, could not personally look after her affairs, and, therefore, she apprehended that her zamindari would be ruined and in those circumstances she granted a 'bemiadi' patta.
These facts themselves distinguish the case from the present one. This case, therefore, is not authority for the proposition that because the lease is 'bemiadi' it must necessarily be not a permanent one. Mr. Lalnarain Sinha has also relied on the case of -- 'Kailaspati Choudhry v. Muneswar Choudhury', AIR 1918 Pat 468 (C) in which Roe and JwaJa Prasad, JJ. observed:
"Where a contract is not for any specified number of years it is to be regarded as a lease from year to year terminable upon notice by either side within the limits of the law, regulating the eviction of undertenants".
The terms of the lease are not set out in the judgment. The above observations are based on. the terms of the particular lease in that suit rnd as such this case cannot be considered an authority for the proposition that the word 'bemiadi' always negatives permanency. This case has been considered by Rowland, J. in -- 'Darbat Saheb v. Bare Lal Kandarp Nath', AIR 1936 Pat 275 (D), which is considered hereafter.
10. Mr. U.N. Sinha, appearing for the respondents in these appeals, has in reply, cited three cases, in which the case reported in 'AIR 1917 Pat 46 (B)' which has been relied upon by the learned Government Advocate has been considered and distinguished. The first case relied upon by him is the case of -- 'Kangali Charan v. Surja Narain', AIR 1922 Pat 161 (E). In this case the suit was for 'Khas' possession and the document under which the defendants of the suit were in possession was a 'bemiadi' ijara. Coutts, I., with whom Macpherson J., agreed, relied on the Settlement Report of the Patkum Pargana, where the land was situated.
In that Settlement Report it was definitely stated that 'bemiadi ijardars' hold permanent tenures with rent liable tp enhancement, and, therefore, Coutts, J., held that, although the defendant of the suit was described in the record-of-rights as a 'bemiadi ijardar' he held a heritable, permanent and transferable right. In considering the case reported in 'AIR 1917 Pat 46 (B)' his Lordship observed that the learned Judges who decided the case on a consideration of the terms of the lease itself came to the conclusion that the 'bemiadi' patta was not a permanent lease, and, therefore, his Lordship said that that is a very different matter to saying that because a lease is a 'bemiadi' one, it cannot, therefore, be a permanent lease.
It was, therefore, decided in that case that, although a 'bemiadi' patta does not necessarily convey a permanent heritable right to the grantee, yet it may do so, and, therefore, the matter rested with the facts of each particular case. The next case relied upon is the case of -- 'Commr. of Income tax, Bihar and Orissa v. Visheshwar Singh', AIR 1940 Pat 24 (F).
In this case Fazl Ali, J. had tn consider a 'bemiadi' kabuliat on a reference under Section 66, Income-tax Act. His Lordship considered the decision of this Court in 'AIR 1917 Pat 46 (B)' as well as the decision in 'AIR 1922 Pat 161 (E)' and also (he decision in the case of -- 'Forbcs v. Hanuman Bhagat', AIR 1924 Pat S8 (G). His Lordship said as follows: "The learned Commissioner of Income-tax relying upon the decision of this Court in 'AIR 1917. Pat 46 (B)', held that the lease was not a permanent one. That case however is no authority for the proposition that a 'bemiadi' patta can in no circumstances be regarded as a permanent lease, and it has been fully explained in two subsequent cases, viz. 'AIR 1922 Pat 161 (E)' and 'AIR 1924 Pat 88 (G)'. In the last-mentioned case where the lessee had obtained settlement of parcel of land under a 'bemiadi' lease for the purpose of erecting a gola on the demised land, it was held that the lease was intended to be a permanent one, and not from year to year".
His Lordship on the terms of the document before him held that the Kabuliat although described as a 'bemiadi' kabuliat, wns intended to be a permanent one. His Lordship also referred to the decision of their Lordships of the Judicial Conn " mittee in the case of -- "Janaki Nath v. Dina Nath', AIR 1931 P. C. 207 (H), on which reliance has been placed by the learned Subordinate Judge also and which has been referred to by Mr. Lalnarain Sinha as well. His Lordship in considering this case said as follows:
"In this case the Privy Council held a 'bemiadi' patta to be a permanent lease in the following circumstances: the lease recited that the executant was already in possession of the premises (a hat, bazar, bandar and ghat) under a 'meadi' settlement, that his request for a 'bemiadi' settlement had been granted by the executee on receipt of a premium and on an annual rent being fixed, (such premium being a substantial sum and higher than previously), that the executant had been called upon to execute a kabuliat whereupon he was executing the present "bemiadi" kabuliat and promising to abide by the terms as set forth therein.
Among the terms was one for an enhancement of rent in specified circumstances and another forbidding 'bemiadi' settlements by the lessee whereas other imposed restrictions on the powers of the lessee to dig tanks and erect masonry structures and also provided for the lessor assuming 'khas' possession in certain circumstances".
In this Privy Council case their Lordships of the Judicial Committee observed:
"Thus, at the outset their Lordships feel the pressure of what has been described as one of the surest indications of permanency, viz., the payment of the premium of Rs. 3500", which they considered to be a substantial sum, Their Lordships,, therefore, held that the 'bemiadi' settlement in the case was a permanent one. The last case relied upon by Mr. U.N. Sinha is the case of 'AIR 1936 Pat 275 (D). In this case Wort, J. considered the case reported in 'AIR 1917 Pat 40 (B)', 'AIR 1922 Pat 161 (E/ and 'AIR 1931 P. C. 207 (H)"s and held on the terms of the lease itself that although the lease was described as a thika 'bemiadi', an expression which meant without term, the lease was a permanent one.
Rowland, J. in this case agreed that the appeal should be dismissed, but gave a separate judgment. His Lordship considered the cases reported in 'AIR 1917 Pat 46 (B)', 'AIR 1918 Pat 468 (C)', AIR 1922 Pat 161 (E)', 'AIR 1924 Pat 88 (G)' and 'AIR 1931 P. C. 207 (H)' and in dealing particularly with the first three cases mentioned above said as follows:
"It was held in 'AIR 1917 Pat 46 (B)' that the words "bemiadi patta" did not connote any permanence, of tenure, and in that case the Court found nothing in the patta to lead to the conclusion that the lease was permanent. The same view was taken in 'AIR 1918 Pat 468 (C)', and these decisions might suggest that a "bemiadi patta' would not in any case be regarded as creating a permanent lease.
But in 'AIR 1922 Pat 161 (E)' it was held that where the terms of the lease awl the circumstances point to the' conclusion that a lease created by a 'bemiadi patta' was intended to be permanent, the use of the expression "bemiadi patta" would not be taken to negative the permanence of the tenure.
11. I, therefore, hold that the decisions in "AIR. 1917 Pat 46 (B)' and 'AIR 1918 Pat 468 (C)' are no authority -for the proposition that a "bemiadi" patta can in no circumstances be regarded as a permanent lease.
12. On a review of the above cases, it is clear that the use of the expression "bemiadi" would not be taken to negative the permanence of the tenancy but at the same time the use of the word "bemiadi" does not necessarily convey a permanent heritable right to the grantee, yet it may do so. The word "bemiadi" itself does not conclude the matter.
The question whether a 'bemiadi patta' created a permanent lease or not cannot be resolved by reference only to the use and meaning of the word "bemiadi"; but should be determined after a consideration of all the provisions of the lease by which the rights of the parties are defined, and the circumstances in which and the purpose for which it was granted. The cumulative effect of such provisions coupled with other facts may lead to the inference of a permanent tenancy.
13. Their Lordships of the Supreme Court in the case of -- 'Bijoy Gopal Mukherii v. Pratul Chandra Ghose', AIR 1953 S.C. 153 (I), while considering whether the tenancy of the defendant o£ that suit was permanent, heritable and transferable and was (not liable to be determined by notices, observed that mere possession for generations at a uniform rent by itself may not be conclusive proof of a permanent right, but the cumulative effect of such facts coupled with other facts may lead to the inference of a permanent tenancy.
In this case there was no question of 'bemiadi' lease, but from the circumstances of the case it was sought to be argued that a permanent tenancy had been created.
14. Decisions have to be read in the light of the facts of each particular case, and, therefore, we have to find out what is the correct view to take of the rights of the parties after considering all the clauses of the lease. It must be observed that the choice lies between two alternatives only.
Either the lease is a permanent lease, not liable to be determined by notice, or it is a lease from year to year which a landlord could at his will determine by a six months* notice. No intermediate position is open. It is, therefore, necessary to see what are the terms of the lease itself.
The official English translation of the lease has been quoted in the earlier part of the judgment and from that lease its main provisions are: (1) the lease was granted on taking a premium of Rs. 1500; (2) the lessor reserved to himself only rights in mines, and minerals of the leasehold; (3) the rental was a fixed annual rtental of Rs. 137/12/- excluding cess together with two goats worth Rs. 4/8/-; (4) the lessee was to enjoy the property from generation to generation for ever descendible only to legitimate male issues; (5) the lessee was to pay the fixed rent, kist by kist, year after year, without raising any objection of any kind; (6) on failure of the lessee to pay the rent as stipulated he was only to pay interest on the same and (7) the lessee as well as his heirs and successors in the male line were also to be responsible for any criminal case within the leasehold property.
Coupled with the above terms, the other salient facts are: (1) the tenancy has passed from one person to another by inheritance; (2) the lessee and his heirs have been in possession at a uniform rent; (3) the lessee was in no case entitled to an abatement of the fixed rent as no such right has been given to the lessee under the document; (4) the fixed rent was not liable to be enhanced, as there is no provision in the lease for such an enhancement under any circumstance; (5) the lease does not provide that the lessee was liable to eviction at all on his failure to pay the stipulated rent, beyond paying interest thereon; (6) the lease does not provide that the lessee was in any case entitled to surrender the lease; (7) the plaintiff himself, as appears from Ex. D series, which according to P. W. 1 himself, and as found by the Court below also, bear genuine signatures of the plaintiff, has realised the rent from the defendants in the years 1932 and 1933, and granted receipts for the same to the defendants in the name of Dargani Sah, father of defendants 1 and 2, by describing him as 'bemiadi' thicadar, under his own signatures; and (8) the plaintiff's estate vested in the State of Bihar under the Bihar Land Reforms Act, 1950, on 11-6-52, and the State of Bihar on 4-9-52 was added as an appellant in this appeal; and on behalf of of the State of Bihar rent has been realised during the pendency of the appeal from the defendants, and receipts granted therefor during the years 1953-1955.
These receipts were taken as additional evidence in the appeal by this Court, for the reasons recorded in order No. 22 dated 19-7-1955, and have been marked as Exs. E(1) to E(6). A notice dated 23-8-53 under Section 7, Public Demands Recovery Act, regarding the arrears of rent for the disputed land issued to defendant No. 3 has also been filed and taken as additional evidence in the appeal and marked Ex. E.
15. Section 105, T. P. Act, defines both premium and rent. In this section a lease of immovable property is defined as "a transfer of a right to enjoy such property", and it is clearly stated that "the price is called the 'premium', and the money, share, service or other thing to be so rendered is called the rent". It is obvious, therefore, that the premium represents the whole or part of the price of the land. The premium, or 'salami', or 'Nazrana' is paid once for all, and is not recurring payment, and, therefore, the payment of a substantial premium, as observed by their Lordships of the Judicial Committee, is certainly one of the surest indications of permanency.
The Court below has found that in the present case the payment of the premium to the tune of Rs. 1500 was a substantial premium, inasmuch as P. W. 1 has not made any statement as to the value of the property at the time when the lease in suit was executed in order to show that the sum of Rs. 1500 could not have been a substantial premium. I, therefore, agree with the Court below that the payment of the premium of Rs. 1500 was payment of a substantial premium, and, therefore, it was a good indication to show that the intention of the parties was certainly to create a permanent lease.
The cumulative effect of all the terms, facts and circumstances mentioned above clearly leads to the inference of a permanent tenancy. All the salient facts and circumstances enumerated above, put together, are explicable only on the hypothesis of permanent nature of the lease, and they irresistibly lead to the conclusion, as held by the Court below also that the tenancy in question was a permanent one.
16. In agreement, therefore, with the Court be low, I hold that the lease in question was a permanent lease and not a lease from year to year, and as such it was not terminable on notices to quit, and, therefore, the plaintiff's suit had been lightly dismissed.
17. As I have stated before, the lease in F. A. No. 507/47 is on the same terms and conditions except this that the rental payable in that suit is Rs. 151 besides cess and one he-goat worth Rs. 2/4/-and five seers of Ghee worth Rs. 5. In this appeal Mr. Raghosaran Lal appeared for the defendants respondents, and he also filed a rent receipt granted by the State of Bihar to his clients. This receipt was also taken as additional evidence in the appeal and marked Ex. E. In this appeal also the respondents filed rent receipts, Exs. B, C and D series, to show that rent has been realised from them on behalf of the plaintiff.
Particularly from Exs. B and D(6) it appears that in the years 1924 and 1936 receipts were granted describing the defendants' father as thikadar on the basis of the patta kabuliat which in Ex. D(6) was mentioned as 'bemiyadi'. This lease also is, for the reasons given before, a permanent lease, and as such the plaintiff's suit had been rightly dismissed.
18. In the result, both the appeals fail and they are dismissed with costs.
Rai, J.
19. I agree.