Patna High Court
Girja Kuer And Ors. vs Ghafoor Mian And Ors. on 7 February, 1951
Equivalent citations: AIR1952PAT55, AIR 1952 PATNA 55, ILR 30 PAT 344
JUDGMENT Ramaswami, J.
1. The question to be determined in this appeal is as to whether the plaintiffs are entitled to a decree for eviction of defendants 1 and 2 from 9 kathas, 3 dhurs of Plot No. 268, Khata No. 15 of Village Misrawalia.
2. The plaintiffs brought the suit alleging that he and defendant No. 11 were kashtkars of the laud, that defendants 3 to 10 had taken shikmi settlement of 1 bigha, 3 katha, 14 dhurs on payment of annual rent, that by a sale-deed, dated 3rd June 1943, defendants 3 to 10 had transferred a portion of the shikmi holding viz., 9 katha and 3 dhurs of Plot No. 268 to defendants 1 and 2. The plaintiffs asserted that the shikmidars had no right to transfer the land to defendants 1 and 2, that there was no custom of transferability of shikmi holding in the village, that defendants 1 and 2 were mere trespassers and the plaintiffs were entitled to re-enter upon the portion of the land transferred to them. Defendants 1 and 2 contested the suit alleging that there was custom of transferability of shikmi holding, that they had built pucca house on the disputed land to the knowledge of the plaintiffs who were therefore estopped "from asking for ejectment. It was stated that the defendants 1 and 2 were purchasers of only a portion of the shikmi holding and in consequence the plaintiffs ought not to be granted a decree for ejectment. Upon the examination of the evidence the learned Munsiff held (1) that the custom of transferability was not established, (2) that the house was built by defendants 1 and 2 after the institution of the suit and so the plaintiffs were not estopped from claiming a decree for ejectment and (3) that defendants 3 to 10 being shikmidars had no right to transfer the disputed land to defendants 1 and 2. The learned Munsiff granted a decree for ejectment in favour of the plaintiffs. In appeal the decision of the learned Munsiff has been reversed by the Subordinate Judge of Chapra, who held that the plaintiffs had no right to re-enter since the transfer was with respect to only a part of the shikmi holding and the suit of the plaintiffs ought to be dismissed.
3. In support of this appeal Mr. A.B.N. Sinha maintained that the learned Subordinate Judge was erroneous to hold that the principle in 'Dayamoyi v. Ananda Mohan', 42 Cal 172 (PB) was applicable to the material facts found in the present case. Learned Counsel pointed out that Section 87 of the Bihar Tenancy Act was not applicable to shikmi raiyats and since no question of abandonment can arise with respect to a shikmi raiyat the principle of 'Dayamoyi's case', cited supra, cannot be relevant. In my opinion, the argument advanced by the learned Counsel is untenable and cannot succeed. It is of importance to notice at the outset that the newly enacted Section 48-B of the Bihar Tenancy Act expressly states that "an under-raiyat, who has acquired a right of occupancy in any land under Section 48-A, shall be subject to the same provisions... succession to, and eviction from, such land as an occupancy raiyat".
In the present case, it was not disputed by the learned Counsel who argued in support of the appeal that the shikmidars, viz., defendants 3 to 10, had acquired a right of occupancy by virtue of the newly enacted Section 48-A of the Bihar Tenancy Act. it is important to state that under Section 25 of the Bihar Tenancy Act an occupancy raiyat cannot be ejected by his landlord from his holding, except in execution of a decree for ejectment passed on the ground (a) that he has used the land comprised in his holding in a manner which renders it unfit for the purposes of the tenancy, or (b) that he has broken a condition consistent with the provisions of this Act, and on breach of which he is, under the terms of a contract between himself and his landlord, liable to be ejected. It was conceded by the learned Counsel that the suit has not been brought against shikmidars for ejectment from the entire shikmi holding on the ground contemplated by Sub-clauses (1) and (2) of Section 25 of the Bihar Tenancy Act. It is manifest on the other hand that the suit has not been brought against shikmidars but against transferees of a portion of the shikmi holding on the ground that they had not acquired any valid title by the sale-deed executed in their favour by the shikmidars. Such a suit is not, in my opinion, maintainable for, in the first place, the plaintiff must in order to obtain a decree for ejectment not only show that a portion of the land of the holding is in occupation of a person who has no title but he must further show that; either the interest of the shikmi raiyat has ceased or that he is entitled to eject the shikmi raiyat for, one of the reasons mentioned in Section 25 of the Bihar Tenancy Act. As is pointed out in the case of 'Kabil Sardar v. Chunder Nath', 20 Cal 590 the reason why a landlord is entitled to re-enter when a non-transferable holding has been sold and placed in the occupation of the purchaser, is that the sale and transfer of possession to the purchaser conveys no title to him, and as the tenant has left the holding and disclaims any interest in it, he must be held to have abandoned it, so that the land remains a piece of land within the zamindari in the occupation of a trespasser; but it is evident that it is essential that the raiyat must have abandoned it 'altogether', because if he has not, he is the person entitled to possession of it and in order to entitle the landlord to re-enter it should be shown that the interest of the raiyat has ceased. In the case before us, it has neither been alleged nor proved that before the institution of the suit the shikmidars had repudiated the liability to pay rent for the portion transferred. It must be held upon the material facts of this case that the shikmi tenancy has not been forfeited by unauthorised transfer of a portion of the shikmi holding in favour of defendants 1 and 2 and that in spite of the transfer, the shikmi tenancy still subsists and the liability of the shikmidars to pay the entire rent to the plaintiffs continues. It follows that the shikmidars cannot be evicted from whole or a portion of the shikmi holding nor can the plaintiffs seek to evict the transferees from the land occupied by them because the tenancy still survives and the landlord has no cause of action, his only remedy being to sue the priginal shikmidar for rent, if it remains unpaid. This opinion is supported by Kamaleswari Pd. Singh v. Harbullabh Narain Singly, 2 Cal L J 369 in which a suit was brought by a landlord under Section 155 of the Bengal Tenancy Act for ejectment on the ground that the occupancy raiyat had used the land in a manner which had rendered it unlit for the purposes of the tenancy within the meaning of Section 25 of the Act. It appears that the first defendant in that case had an occupancy holding of 11 cottas, 14 dhurs, out of which he transferred about 8 cottas to the second defendant by a conveyance and on a subsequent date the purchaser began to erect a building thereon. The plaintiff brought the suit on the allegation that the holding was not transferable either by custom or usage in its entirety or in part and that the land had been used in a manner which had rendered the holding unfit for the purpose of the tenancy and that the tenancy had been forfeited by reason of unauthorised transfer and misuse of the land. The plaintiff asked for a decree for the ejectment of the defendants from the portion transferred, for the removal of the building and for damages. The defendants resisted the claim substantially on the ground that the action could not be maintained for ejectment from a portion of the lands comprised in the tenancy. The Court of first instance found that the holding was agricultural, that the first defendant had acquired the status of an occupancy raiyat, that the holding had not been proved by custom or usage to be transferable, that the land had been used in a manner which rendered it unfit for the purposes of the tenancy, and that the tenancy had been forfeited by reason of illegal transfer of a part of the land. In this view of the matter, a decree was made in favour of the plaintiff for ejectment of the defendants and for removal of the building from the portion transferred, to which alone the claim in the plaint was expressly restricted. The decree was affirmed in appeal by the District Judge. The original tenant and the transferee preferred separate appeals to the High Court and on their behalf the decision of the lower Court was assailed substantially on the ground that the transfer of a portion of the lands of the holding had not effected a forfeiture of the tenancy, and the plaintiff respondent was not entitled to maintain an action for ejectment of the portion so transferred either against the transferor or the transferee. The argument was accepted by the High Court and the appeals were allowed and the suit was dismissed with respect to the claim for ejectment and for removal of the building. Mookerjee, J. who delivered the judgment of the High Court pointed out that the transfer by an occupancy raiyat of a portion of his holding did not effect a forfeiture of his tenancy, if he continued in occupation of the remainder, and although the landlord might be entitled to a declaration that the transfer was not binding upon him, he was not entitled to maintain an action in ejectment either against the transferor or the transferee. The ratio of this case has been approved by the Pull Bench in 'Dayameyi's case', 42 Cal 172 in which one of the question referred was whether in the case of a transfer of a portion of an occupancy holding, such transfer not binding the landlord unless made with his consent, the transferee can by suit recover possession from the landlord who has forcibly dispossessed him. The question was answered by the Full Bench in the affirmative; the decree of the lower appellate Court was set aside and a fresh, decree was passed in favour of the plaintiff for possession. From the report of the case, it would seem that the Full Bench based their decision on the principle of 'Kamaleswari Prasad Singh v. Harbullabh Narain Singh', 2 Cal L J 369 and other authorities cited by the learned Judges who made the order of reference. In support of this appeal Mr. A.B.N. Sinha referred to 'Abas Khan v. Aid. Hussain', 22 Pat L T 749 and 'Srikishun Lal v. Harihar Sah', AIR (36) 1949 Pat 444 but the precise question at issue in the present appeal was not argued or decided in these two authorities. On other hand it would appear that in 'Shri Kishun Lal v. Harihar Sah', AIR (36) 1949 Pat 444 the entire shikmi holding was transferred by the shikmidar in, favour of the defendant, whom the plaintiff sought, to eject. As regards '22 Pat L T 749' it is not clear from the narrative of the facts whether the transfer was with respect to a part of the shikmi holding or with respect to the whole of it. In my opinion, these authorities are not of any assistance to the appellants as the material facts of the present case are different,
4. For the reasons already stated I am of opinion that the lower appellate Court has rightly refused to grant a decree for ejectment in favour of the plaintiffs. I would accordingly affirm the decree of the lower appellate Court and dismiss this appeal with costs.
Rai, J.
5. I agree.