Calcutta High Court
Hajra Sardara And Ors. vs Kunja Behari Nag Choudhury on 20 January, 1917
Equivalent citations: 40IND. CAS.271
JUDGMENT Fletcher, J.
1. This is an appeal by the defendants Nos. 1 to 3 from a judgment of the Second District Judge of the 24-Pergannahs, dated the 6th January 1915, affirming the decision of the Munsif of Basirhat, The suit was brought by the plaintiff for a declaration of his ganii right to certain chur lands. In hismat patta, there were two portionsthe bower patta and the danga patta. The danga patta belonged to a certain number of zemindars and had been divided amongst them. The bower patta belonged to certain zemindars who are now represented by the defendants Nos. 5 to 53. The first lease that was granted of this property appears to have been in the Bengali year 1268. That lease of the bower patta was granted to one Arun Chunder Battaoharjee. The lease in its terms excluded 321 bighas of land. Arun in his term granted an under-lease to two persons named Jasimuddin and Gorai Mandal on the 20th Falgun 1271 B.S., corresponding to same date in March 1865. On the 10th April 1901, an intermediate lease was granted to one Dhara Nath Roy Choudhury. Then a rent suit was brought by Dhara Nath to recover rent from Jasimuddin and Gorai Mandal. That suit was decreed and in the sale in execution on the 29th July 1902 Dhara Nath Roy purchased the interest of Jasimuddin and Gorai. Dhara Nath Roy surrendered his ijara right in favour of Arun's son, the present defendant No. 4, on the 19th June 1903 and sold his. darganti right to one Pramoda Sundari. Then a suit for rent was brought against Pramoda Sundari in the year 1908 and a decree was passed and the defendant No. 4 purchased the tenure. On the 14th July 1909, the defendant No. 4 sold his right purchased in execution, to the plaintiff. When the plaintiff went to take possession in October or November 1909, he was resisted and the result was that the present suit was started in the month of August 1911.
2. The first point that was raised in this appeal was as to whether the plaintiff had established that the land sued for in this case was a portion of the land included in the lease to Arun. The question, it strikes me, is eminently a question of fact. But whether it is a question of fact or not, the decisions both of the primary Court and also of the lower Appellate Court show con-clusively that this land is, in fact, a portion of the land let out to Arun and that the 321 bighas which might have been bower patta originally bad, on the date of the lease to Arun, became part of the danga patta.
3. The next argument was on the question of limitation. The appellants before us, according to the findings of both the lower Courts, were for twenty years and upwards in possession of this land and the question that was raised in this appeal was whether the possession of the defendants was adverse as against the lessor during the subsistence of the under-lease. If it was not, it is quite clear, on the facts, that the present suit was brought within time. The decisions in this Court on the point are numerous. But the decisions in favour of the appellants when one reads the cases closely are few and they consist, as far as I can see, amongst others, of the decision in the case of Prosunnomoyi Dasi v. Kali Das Roy 9 C.L.R. 347 a decision of Mr. Justice Princep and Mr. Justice Field. That case has frequently not been followed in this Court. In my own experience while forming a number of a Bench of this Court certainly on one occasion that decision was not followed. The other case referred to is the case of Brindabun Chunder Sircar Chowdhry v. Bhoopal Chunder Biswas 17 W.R. 377. That decision also seems to support the argument of the appellants. The other cases that Dr. Dwarka Nath Mitter for the appellants has cited in support of his argument do not, when closely read, support the proposition he put forward, because in every one of those cases the Court was deciding a case where the property had been let out to common tenants and the Court drew attention in the course of its judgment to the difference between a case where the property was let out to common tenants and a case where the property was let out in ijara. 1 do not think that those other oases cited by Dr. Dwarka Nath Mitter support the proposition that he wished to make. As against that, there is a large body of authority commencing with the ease of Davis v. Kazee Abdool Hamid 8 W.R. 55 which is followed by the . decision in Womesh Chunder Goopta v. Raj Narain Roy 10 W.R. 15 down to the latest case cited to us, namely, the case of Kishwar Nath Sahi Dev v. Kali Sankar Sahai 10 C.W.N. 343. All these cases decided clearly that where the property was let out in lease, the possession of a trespasser did not become adverse as against the lessor until the termination of the lease. That, I think, is not only established by those cases but is also correct in principle. The difficulties of holding that the possession of a trespasser during the continuance of the lease could be adverse as against the lessor are serious, as has been pointed out in more than one judgment. I think that the learned District Judge in the Court of Appeal below was clearly right when he held that the plaintiff's suit was not barred by adverse possession. I think, therefore, that the appeal fails and must be dismissed with costs.
4. The other question is the question raised on the cross-objection to the appeal, namely, that, on the findings in this case, the learned Judge ought not to have settled a fair and equitable rent as against the appellants but ought to have passed a decree for ejectment. The learned Judge has found that the appellants are trespassers. He has also found that the case that the defendants set up that they bona fide held the land under a person whom they believed to be the owner thereof, is not a true case. The only reason for which the learned Judge thought that the defendants ought not to be ejected was that they had been in actual possession of the land for some twenty years and that;, therefore, it was not equitable that they should be ejected. But if a person has bean in actual possession for twenty years and, there are no special circumstances such as have been laid down in the cases as to a person taking a settlement bona fide from a person whom he believes to be entitled to the land, the mere fact that he has been there for twenty years is no reason why he should not be ejected. On the contrary it is more reasonable that he should be ejected because he has been in possession of another man's property for a considerable number of years. The decree of the lower Appellate Court in this respect has been attempted to be supported by Dr. Dwarka Nath Mitter by two decisions of this Court. But neither of those case3 clearly applies to the facts of this case. The first case that has been relied upon is the case of Ishan Chandra Mitter v. Raja Bam; Ranjan Chakarbutty 2 C.L.J. 125 at p. 138 and the remarks that are relied on are to be found at page 138. They run as follows:"In a case like this where the tenant encroaches not in his character as tenant but asserts a hostile title against the entire interest of his landlord, the rule laid down by this Court in the case of Wali Ahmed v. Tota Meah 31 C. 397 would be applicable, namely, that if a tenant encroaches on the adjoining waste lands of the landlord, his possession of the lands encroached upon can only commence to be adverse when a title adverse to the landlord is asserted or the landlord becomes aware of the encroachment." The present case is clearly distinguishable from that rule, because the encroachment in this case was not an encroachment on the adjoining land of the landlord. These lands do not belong to the persons who are the landlords of the other lands said to be held by the defendants. The only other class of cases is that class where a person has taken a bona fide settlement from another person whom he believed to be, in fact, the landlord and entitled to let cut the land. The learned Judge in the lower Appellate Court has found that the case that the defendants set up that they bona fide held the land under a person whom they believed to be the owner thereof was not a true case. The equity that they set up as to long possession which satisfied the learned District Judge is no ground, in my opinion, why they should be permitted to be in possession of the land which the learned Judge of the lower Appellate Court has found they are holding possession of as trespassers. I think we ought to allow the cross-objection of the plaintiff-respondent and in lieu of the decree made by the learned Judge settling a fair and equitable rent of the property, we ought to direct that the defendants-appellants before us be ejected from the land in suit. The crossobjection is, therefore, allowed with costs.
Smither, J.
5. I agree.