Patna High Court
Dr. Prabhu Narain vs Kamla Prasad And Ors. on 5 September, 1963
Equivalent citations: AIR1964PAT59, AIR 1964 PATNA 59
JUDGMENT Mahapatra, J.
1. This appeal is against the concurrent dismissal of the plaintiff's suit in the two Courts below. His action was for declaration of title and recovery of possession with mesne profits in respect of 6 kathas of land on the northern portion of survey plot No. 172 of Khata No. 45 in tauzi No. 10323 in village Baghmani in the town of Hajipur. The defendants first party were in possession or the land and claimed occupancy right over it. Defendants second party were the landlords who had executed a registered patta on the 22nd September 1949 in favour of the plaintiff on taking Rs. 1800/- from him. Defendants third party were the other cosharer landlords of the same tauzi. Survey Plot No. 172 of Khata No, 45 was gairmazrua malik land and was divided between the landlords in an amicable partition by virtue of which 6 hathas to the north of the plot came to the share of defendants second party who in 1949 settled that with the plaintiff. The defendants first party were also anxious to take that settlement but they were defeated by a higher premium offered by the plaintiff. There was disturbance between them and the plaintiff and a proceeding under Section 144, Criminal Procedure Code, was started and order was made absolute against the plaintiff on the 16th of April 1950 following that the defendants first party dispossessed the plaintiff from the suit land and, therefore, he came to the court to recover possession and mesne profits from them. He also alternatively claimed Rs. 1800/- to be paid by the defendants second party obviously for the reason that as i.e. failed to obtain the land settled with him, he was entitled to get back money which he had paid for that settlement.
2. The defence of the defendant first party was that when he purchased the adjoining survey plot No. 176 he came in possession of some of the disputed portion of survey plot 172 as that was also in possession of his vendors. The purchase took place on the 25th of November, 1936, since when the defendant first party has all along been in peaceful and uninterrupted possession in assertion of his right and in denial of the rights of others. He thus completed his title by adverse possession by the time the suit was brought. Plaintiff's title was also disputed on the ground that the settlement was not for agricultural purpose and in absence of any Kabuliat or any document executed by the plaintiff, he was hit by the provisions of Section 107 of the Transfer of Property ACT. Defendants second party supported the plaintiff but at the same time they pleaded that as the plaintiff had taken settlement of the suit lands after due enquiry about the settlor's title and possession, they were not liable to refund the consideration money paid for settlement on account of any illegal dispossession of the plaintiff from the land by the defendants first party. Defendant No. 7's case was that his predecessor-in-interest, the District Board of Muzaffarpur were all along in possession of the suit land and, as such, they had acquired title by adverse possession.
3. The concurrent findings of both the Courts nave been against the plaintiff. They have held that the plaintiff did not acquire any title as the registered instrument of lease was not executed by both the lessor and the lessee. Defendant first party was found to be in possession for six years and before that the possession of the land was with the landlords defendants second party who has perfect title to that. Defendant first party's claim or title by adverse possession was not established. It has also been held that the plaintiff was not entitled to refund of the consideration money from the defendants second party.
4. In the present appeal by the plaintiff, the only point that was canvassed before us was that when he could not get possession from the defendants second party, the lessors, he was entitled to the refund of the money paid for the settlement. This is in conflict with the plaintiff's own case. In the plaint it was stated that the plaintiff took possession of the suit land after taking settlement and was later dispossessed by the defendant first party. Secondly, plaintiff cannot take shelter under Section 108 of the Transfer of Property Act on which learned Counsel relied. Sub-clause (b) of that section lays down; "the lessor is bound on the lessee's request to put him in possession of the property". Learned counsel contended that this bounden duty of the defendants second party was not performed, and, therefore, they were liable to refund the money received from the plaintiff. The judgments of the Courts below do not reveal that the plaintiff ever complained in evidence that he had made a request to the lessors to be put in possession of the lease-hold but the lessors failed to do.
On the other hand, his case was that he had taken the settlement of the suit land for the purpose of construction of a house and in paragraph 6 of the permit he admitted that immediately after the settlement, he applied to the municipality for permission to construct a house on the suit land. The certified copies of his petitions to the municipality were marked as Exts. 5 and 5/a. They were dated the 10th of October 1949, only a few days after the lease was taken. The lessee (plaintiff) knew this land before he sought to take the lease and after taking it, he proceeded with the preliminaries for the construction of his house on it. He did not bring in evidence that he ever anticipated any difficulty of possession over the suit land or wanted the lessor to give him possession by taking out any other person like the defendant first party or the Public Works Department, defendant No. 7. In fact, in the suit itself, as stated by the first appellate Court, the plaintiff wanted to recover possession of only 3 kathas 4 dhurs of the disputed land from the defendant first party.
In regard to the other portion of the suit land the Public Works Department was in possession and we are told by learned Counsel that there had been some settlement between them and the plaintiff. There is a legal obligation on the lessor to put the lessee in possession on a request being made to him to that effect. Where the lessee is acquainted with the land leased to him, and there is no likelihood of obstruction to his going upon the land and taking possession of it, there is no duty on the lessor to put the lessee in possession unless the latter requests him to do so. There does not appear to be any evidence that the defendant first party had put in any construction over the land in question, that may be the reason why the plaintiff might have thought that there was no likelihood of any obstruction to his going upon the land, and, therefore, he did not request possession from the lessor. In absence of such a request and the consequent failure by the lessor in performing his obligation, the plaintiff cannot make a case tor refund of the consideration money from the lessor. Except barely claiming the refund of Rs. 1800/-, no allegation of the lessor failing to give possession to the losses was mentioned in the plaint anywhere.
5. Learned counsel next relied upon Clause (c) of Section 103 of the Transfer of Property Act which provides a covenant for quiet enjoyment for the lessee, it reads:
"the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by we lease and performs the contract binding on the lessee, he may hold the property during the time limited by the lease without interruption.
The benefit of such contract shall be annexed to and go with the lessee's interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested."
It is well established that the covenant for quiet enjoyment only extends to the disturbance that may be caused in the lessee's possession either by the lessor or by any person claiming under him or by his landlord but not by a trespasser; see Chandi v. Kalyani, ILR 49 Cal 948: (AIR 1922 Cal 87); Katyini Debi v. Udoy Kumar Das, 52 Ind App 160 : (AIR 1925 PC 97); Surendra v. Bhudar, AIR 1938 Cal 690 and Ayyanna v. Gangayys, AIR 1933 Mad 465. As far as disturbance by a trespasser is concerned, the lessee has a proper remedy against the wrong-doer and that is why action does not lie against the lessor, nor there can be any suspension or abatement of rent against him, If the lessee is disturbed in his possession by the wrongful act of a trespasser and if it is not established that such trespasser was instigated by the lessor, the lessee neither can recover the premium paid by him to the lessor nor can suspend the payment of rent to him.
On the facts of the present case the covenant or quiet enjoyment has not been breached by the lessor; nor has it been made out that the lessor had any detect in his title before he settled the land with the plaintiff. There has not been a proper lease according to law on account of the technical defect in the execution of the required document by both the parties. But as tar as the intention of the parties went, there was no ambiguity or doubt either about the title of the lessor or about the possibility of taking possession of the land by the lessee. In that view I do not think that the plaintiff will be entitled to recover the money that he paid as premium to the defendants second party in the present suit. I shall also mention that there was no covenant for any refund in the registered patta. The plaintiff loses his suit for recovery of possession of the land on account or his deriving no title under the deed of lease.
6. Respondent No. 2 who was defendant No. 2 of the defendants second party in the trial Court made an application to he transposed as an appellant in the present case. Learned counsel appearing for him stated that it the plaintiff fails in his action for want of a good title the defendants second party should be given a decree for possession against the defendants first party on trio finding which has been recorded by the Courts below that they had perfect title over the suit land. Such an attempt on their part was not accepted by the first appellate Court. By now the tauzi has vested in the State Government under the Bihar Land Reforms Act and the defendants second party as landlords have lost all their interests in the tauzi as well as in the disputed land since the vesting. They were not admittedly in possession of this land on the relevant dale to acquire the benefits provided under Section 6 of that Act. In that view they cannot maintain any suit for possession against the trespassers like the defendants first party. Accordingly, the application, cannot be entertained.
7. The result, therefore, is that this appeal fails and is dismissed but, in the circumstances of the case, without any costs in this Court.
Tarkeshwar Nath, J.
8. I agree.