Patna High Court
Mathura Singh And Ors. vs Mirza Jamal Alias Zamir And Ors. on 26 May, 1971
Equivalent citations: AIR1973PAT43, AIR 1973 PATNA 43
JUDGMENT Shambhu Prasad Singh, J.
1. The suit of the plaintiff-respondents for a declaration that the suit land was their ralyati land and that the defendants-appellants were liable to be evicted therefrom was dismissed by the trial Court. The lower appellate Court has reversed that decree. Hence, the defendants have preferred this second appeal.
2. The suit land measuring 3.60 acres, under khata No. 74 of village Sheopur in the district of Hazaribagh admittedly, once belonged to Jairaj, Chatarlal and Mahadeo Lal and, subsequently, was owned and possessed by their successor-in-interest Kashilal. The case of the respondents is that Kashilal sold the suit land to them by a registered sale deed dated the 7th of September, 1942. The respondents came in possession of the suit land and, thereafter, instituted Title Suit No. 36 of 1947 for declaration of title and partition. Defendant No. 1 of that suit, who is defendant No. 1 in the present suit, made out a case that he had taken the raiyati settlement of the suit land from Kashilal by a Hukumnama dated the 16th of July, 1932. It was held in that suit that the plaintiffs were raiyats and defendant No. 1 was dar-raiyat of the suit land and would divide the produce thereof between him and the plaintiffs of that suit. The said decree of the trial Court in that suit was affirmed by the High Court. According to the respondents, the appellants' status was that of tenants at will and they were liable to be evicted. Accordingly, the respondents served a notice on defendants \ to 3 and one Baijnath Singh to vacate the suit land by the date mentioned in that notice and when the appellants did not vacate by that date, the suit was instituted.
3. The case of defendants 1 to 5 and 8, who contested the suit, is that the settlement by Kashilal in favour of defendant No. 1 was of permanent dar-raiyati right with occupancy and, therefore, they were not liable to be evicted. The respondents never came in possession of the suit land after they purchased it from Kashilal. They could only get produce rent from the appellants. They further pleaded that they had acquired occupancy right in the suit land by adverse possession. According to them, the judgment in the suit of 1947 would operate as res judicata between the parties. They also denied service of notice upon them.
4. The trial Court held that the notice served on the appellants was proper and legal, but it dismissed the suit as, in its opinion, the appellants had acquired the dar-raiyati right with occupancy. The lower appellate Court has affirmed the finding of the trial Court on the question of service of notice. Really, the finding of the trial Court on that question was not challenged before the lower appellate Court. In its opinion, the appellants could not acquire right of occupancy in the suit land. Hence, it has decreed the suit.
5. Learned counsel for the appellants has advanced two arguments in sup-
port of the appeal: firstly, that the notice to vacate was not legal and, secondly, that the appellants have acquired occupancy right by prescription. As observed earlier, in the lower appellate Court, the appellants did not challenge the finding of the trial Court that the notice to vacate was served upon them and was proper and legal. In the written statement, no plea was taken that the notice to vacate was not legal. It was only averred that it was not served. Therefore, the appellants cannot be allowed to question the legality of the notice at the second appellate stage, especially when it was not raised even before the lower appellate Court. In support of this view, reference may be made to the decision of the Supreme Court in Raghunath Das v. Union of India, AIR 1969 SC 674. In the suit from which the appeal before the Supreme Court arose, the only plea taken by the defendant was that notice under Section 80 of the Code of Civil Procedure was not served upon him. No plea was taken that the notice was illegal. In the circumstances, their Lordships of the Supreme Court did not accept the contention of the defendant's counsel that the notice under Section 80 of the Code of Civil Procedure was illegal and rejected his argument that the case was covered by the decision of the Supreme Court in S. N. Dutt v. Union of India, AIR 1961 SC 1449 on the ground that in S. N. Dutt's case, the defendant challenged the validity of the notice right from the beginning. In my opinion, therefore, there is no merit in the contention of learned counsel for the appellants that the suit must fail as notice to vacate was illegal.
6. In support of his contention that the appellants have acquired right of occupancy by prescription, learned counsel for the appellants relied on a Bench decision of this Court in Kala Devi v. Khelu Rai, AIR 1947 Pat 124 (sic). In this case, the defendants who had got possession of the suit land under Kurfa lease, which was invalid under Section 27 (1) of the Santal Parganas Settlement Regulation III of 1872, were held to have acquired permanent tenancy rights by prescription and it was observed that the fact that they had been paying rent would be no bar to the acquisition of such rights. Reliance was also placed on another Bench decision of this Court in Dukhu Mahtha v. Nandlal Tiwari, AIR 1952 Pat 293. In that case also a person who came into possession of the land under a lease which was void was held to have acquired right of a permanent tenant by prescription. That was a case, however, where no rent was paid by the person who came in possession of the land under a void lease and, therefore, no relationship of landlord and tenant was ever created. Both the aforesaid cases were considered by a Full Bench of this Court in Bastacolla Colliery Co. Ltd. was distinguished on the ground aforesaid and the following observation was made with reference to Kala Devi's case:--
"In that case also, plaintiffs' right to recover was held to be barred, even though rent was being paid and accepted, because there was an open assertion of a permanent tenancy right by the defendants. It is not clear from the report that assertion was known to the plaintiffs; but the fact that it was open indicates that it must have been known to them."
7. Counsel for both the parties have relied on the Full Bench decision of this Court in Bastacolla Colliery's case. Counsel for the appellants has relied on a passage in the judgment, which runs as follows:
"There are, however, some cases in which a lessee can acquire the right of a permanent tenant by prescription in spite of payment and acceptance of rent. Those are cases where the lessee pays rent on the basis of a notorious claim of permanent tenancy to the knowledge of the owner. The acceptance of rent by the owner on the basis of the lessee's claim as a permanent tenant will not prevent the acquisition of such a right by the lessee. If the lessee tenders it on the basis of permanent tenancy and the owner refuses to accept it on that basis, the parties are at arm's length, and no relationship of landlord and tenant can come into existence between them. Hence, the lessee's possession is adverse to the lessor, and he may acquire a limited, right of permanent tenancy by being in adverse possession for the statutory period."
Counsel for the respondents, on the other hand, has relied on the following passages in that judgment:
"(1) The possession of a lessee becomes wrongful from the time of his entry on the basis of a void or invalid lease: but, if he pays rent, which is accepted by the lessor, his possession ceases to be adverse to the lessor, and a relationship of landlord and tenant comes into existence. In other words, he no longer remains a trespasser but be-comes a tenant."
(2) "If once a tenancy of some kind comes into existence either under an express lease or under a lease implied by law, the tenant cannot convert his tenancy into a permanent one by doing any act adverse to the landlord."
(3) "The tenancy by payment and acceptance of rent comes into existence afterwards, and the assertion of a claim to hold as a permanent tenant must be made openly and to the knowledge of the landlord as a continuous course of conduct from the very time of his entry into possession before it can be held that the tenant has acquired the limited right of a permanent tenant by adverse possession or that the landlord's right to recover is barred by limitation."
(4) "It is manifest in the present case that, owing to the admitted payment and acceptance of rent, the relationship of landlord and tenant came into existence between the plaintiff and the defendant of both the suits. The defendants cannot be held to have prescribed for or acquired the limited right of permanent tenants because they have not proved that they have been in possession with a notorious claim of permanent tenancy to the knowledge of the plaintiff or its predecessor, nor have they proved that they have enjoyed benefits consistent only with a permanent interest."
8. The passage relied on by learned counsel for the appellants came up for consideration by their Lordships of the Supreme Court in Patna Municipal Corporation v. Ram Das (Civil Appeal No. 598 of 1963, D/-11-8-1965 (SC)) and again in Atyam Veerraju v. Pachetti Venkanna, (AIR 1966 SC 629). In the former case, their Lordships of the Supreme Court refrained from pronouncing of the soundness of the observation of this Court in the aforesaid passage. In the latter case, they made the following observation:--
"As we did not hear any argument on that point, we do not also decide whether this passage lays down the correct law. This passage must be read with the following observation of the Patna High Court in the same case."
and then they referred to the second passage relied on by learned counsel for the respondents. It is manifest that their Lordships of the Supreme Court were in doubt as to the correctness of the passage relied on by learned counsel for the appellants and, therefore, wanted that that pasasge should always be read subject to the second passage relied on by learned counsel for the respondents.
9. Reverting to the instant case, I find that in the Hukumnama (Ext. A) itself, it was mentioned that the settlement which was being made was kaimi, dar-raiyati. The Hukumnama being unregistered is inadmissible to prove the terms of the tenancy. Even if it would have been admissible in evidence, by itself it could not confer any right of tenancy as the lease of the land by raiyat was not permissible under the provisions of the Chotanagpur Tenancy Act. The recital in the Hukumnama, at best, can be a piece of evidence to show the nature of possession of the appellants. The appellants always paid rent to Kashilal is not in dispute. They also do not dispute the right of the respondents to receive rent from them. In fact, the right of the respondents to realise rent from the appellants was recognised in the decision which was given in Title Suit No. 36 of 1947. The appellants asserted in their written statement in that suit that they had acquired the right of occupancy as dar-raiyats in the suit land. The trial Court in that suit merely held that they were dar-raiyats. It did not hold that they had also acquired occupancy right. The first Court of appeal from that judgment held that they had acquired occupancy right as well. This Court set aside the modification made by the first Court of appeal and restored the judgment of the trial Court. The judgment in that suit may not operate as res judicata, but it being a judgment inter partes, the findings recorded therein are admissible in evidence and deserve due weight. Obviously, according to the judgment given in that suit, the appellants were not held to have acquired any right of occupancy in the suit land. Can they be said to have acquired such a right by the assertion which they made in that suit or by their subsequent conduct? It has been held in Mahomed Mumtaz Ali Khan v. Mohan Singh, AIR 1923 PC 118 that the mere assertion of a higher right in a judicial proceeding connected with the land in dispute, which ex hypothesi was unfounded at the date when it was made, cannot by the mere lapse of six or twelve years, convert the lower right which a person making assertion possessed into a higher right. Therefore, by mere assertion in the suit of 1947 that they had acquired right of occupancy, which was not accepted by courts which heard that suit, the appellants cannot acquire a right of occupancy in the suit land. By their subsequent act also, the appellants cannot acquire any right of occupancy in the suit land inasmuch as the tenancy of some kind came into existence between the respondents and appellants by that judgment, even if it did not exist from before, and thereafter the appellants could not convert their tenancy into a permanent one by doing any act adverse to the landlord, that is, the respondents. It was so held by the second passage relied on by learned counsel for the respondents from Bastacolla Colliery's case, which was expressly approved by their Lordships of the Supreme Court.
10. For the foregoing reasons, in my opinion, irrespective of the fact whether the passage from Bastacolla Colliery's case, relied on by learned counsel for the appellants correctly states the law or not, on the facts of the present case, the Court of appeal below has correctly held that the appellants have not acquired any right of occupancy in the suit land and it has rightly decreed the suit. I therefore, find no merit in the appeal and it is, accordingly, dismissed with costs.