Patna High Court
Mt. Tapesara Kuer vs Kalap Rajwar And Ors. on 13 January, 1956
Equivalent citations: AIR1957PAT92, AIR 1957 PATNA 92
JUDGMENT Raj Kishore Prasad, J.
1. This appeal, by defendant No. 1, is directed against the concurrent decisions of the courts below decreeing the suit of the plaintiff respondent.
2. The plaintiff's case was that he took settlement of the disputed land from Mangal Prasad Singh, the original Malik of the disputed land, about 25 years back, on the basis of a sada patta, on payment of nazarana, and since the settlement he was in continuous possession of the disputed land till he was forcibly dispossessed by the appellant about four years back. The plaintiffs further case was that the sada patta was lost, but he paid regularly rent, and got receipts from Man-gal Prasad, and his nephew Mathura, who was malik after the death of Mangal.
He further pleaded that there was a partition between Mathura and Jadunath, by virtue of which the disputed land fell to the share of Jadunath, defendant 2, and the plaintiff paid rent to him also regularly, but he did not grant him any receipt, and he set up defendant 1, the appellant to claim the suit land, as against the plaintiff.
3. The suit was contested by the appellant only. Her case was that she took settlement of the disputed land from Jadunath, defendant 2, on 18-3-41, under a patta, and since then she was coming in possession of the land, and she has been regularly paying rent for the same to him. The first court found that the plaintiff had been able to prove his title to the suit land by being in continuous possession over it for more than 25 years prior to the date of his alleged dispossession, and as such the plaintiff having acquired perfect title to the suit land before the alleged settlement by Jadunath in favour of the appellant, the settlement in favour of the defendant was illegal and ineffective, and the defendant had acquired no right under it. On these findings the learned Munsiff decrees the plaintiff's suit.
4. On appeal by the defendant 1, the learned Subordinate Judge affirmed the decision of the first court, and dismissed her appeal; hence the present second appeal has been filed by the defendant No. 1.
5. Mr. Balbhadra Prasad Singh, appearing for the appellant, has put forward several contentions in support of the appeal.
6. His first contention is that there is no specific finding by the lower appellate court that the plaintiff had proved his possession within 12 years of the suit, and as such the plaintiff's suit being a suit in ejectment could not be decreed. It is true that the learned Additional Subordinate Judge has not recorded any specific finding on that point, which he should have done. He has, however, observed that the plaintiff could succeed if he was able to prove that he had been dispossessed within a period of 12 years, and after that he recorded a finding to the effect that "on a consideration of all these facts and the circumstances of the case I see no reason to differ with the learned lower court."
7. The learned Subordinate Judge has considered the entire evidence in the case of both sides, and after a, consideration of the same he did not find any reason to differ with the findings of the first court. In my opinion, therefore, his finding would amount to a finding that the plaintiff had proved his possession within 12 years of the suit, which was the definite finding of the first court. I, therefore, overrule the first contention of Mr. Singh.
8. The next contention is that the plaintiff has not filed the patta, on the basis of which the settlement was made, the first document relied upon by him was a receipt, exhibit 1, granted on behalf of Mangal, the original malik, for 1330 is., corresponding to the year 1923. The other two receipts, namely, exhibits la and Ib, were for the year 1334 and 1339 fasli respectively, corresponding to the years 1927 and 1932.
The argument is that as far as these two receipts were concerned, admittedly they were granted during the time when Mathura Singh was malik after Mangal's death, and from the rehan deed, exhibit C, which was executed on 18-9-30 it appears that partition between Mathura and Jadu-nath took place sometime in 1926, and, therefore, as these two receipts having been granted after the partition, they were invalid, because Mathura had no right to grant receipts in respect of the disputed land, when admittedly this land fell on partition to the share of Jadunath.
Mr. Singh, therefore, contends that on the basis of exhibit 1 it could not be presumed that the plaintiff continued in possession since then in the absence of any documentary evidence to support his continuous possession. He contends that in law there is no presumption of continuity of possession, and the fact that the plaintiff continued in possession since then has to be proved by evidence. In the first place, I find that both the courts below have considered this aspect of the case, and after taking into consideration the oral and documentary evidence, and particularly the evidence of P.W, 3, who has been relied upon by both the courts below, they came to the conclusion that these receipts were granted by Mathura, because even after the actual partition Mathura was in management of the affairs of those proper-ties, which fell to the share of Jadunath, because at the time of separation Jadunath was only 11 years' old.
The question, therefore, is a question of fact, and when both the courts below have concurrently found that these receipts are valid and the continuous possession of the plaintiff has been established by evidence, both oral and documentary I am not prepared to go behind this finding of fact. In the second place, as far as the legal aspect of the matter is concerned, Mr. Singh has relied on a Single Judge decision of the Calcutta High Court in Nayebali Sarkar v. Lalit Mohan Boy, AIR 1935 Cal 151 (A).
In this case Henderson, J. while considering the finding of the court of appeal below based upon a certain entry in the settlement record of rights, observed that there is a presumption that the plaintiffs were in possession at the time when the record was, finally published more than 12 years before the institution of the suit, but when they have been dispossessed subsequently, it is for them to show that such dispossession took place within 12 years of the suit.
Relying on this case Mr. Singh has argued that there is no presumption of continuity of possession in favour of the plaintiff since 1923, which Is more than 12 years before the suit. Recently in Nathoo Lal v. Durga Prasad, AIR 1954 SC 355 (B) it was observed by Ms Lordship Mahajan, C.J.
that "the law presumes in favour of continuity of possession", in such circumstances, apart from the evidence on the side of the plaintiff to prove his possession even after 1923, when the first receipt was granted when, the plaintiff had proved that he got into possession of the disputed land by settlement of Mangal, the admitted original malik of the land, & got a receipt from him in 1923 his possession would be presumed to continue till he was dispossessed by some one, which according. to the plaintiff took place only four years before the suit. Therefore, there is no force also in this contention of Mr. Singh.
9. The last contention of Mr. Singh is that as no oral settlement was pleaded by the plaintiff in his plaint, and when the plaintiff's definite case in the plaint was that he got settlement under a document, and when that document was sada patta and not a registered document, the settlement was illegal and no title had accrued under this sada settlement to the plaintiff. He strongly relied on Hari Prosad Agarwalla v. Abdul Haq, AIR 1951 Pat 160 (C). First of all he relied on the following observation of his Lordship B. P. sinha J :
"A court of law can only recognise or. give effect to a title which is made perfect in law and if any of the legal formalities is wanting to make a title good in law that title is an imperfect title and the court will not help a person who has an imperfect title in law. A transferee who is not clothed with title in the manner recognised by law, cannot be said to be a person having a valid title in law, and therefore, courts of law cannot recognise such title.
It is if the transferee though not clothed with a perfect legal title has been put in possession or .
continued in possession the court on grounds of equity alone can retuse to enforce the rights of the transferor except so far as those rights are expressly mentioned in the contract in writing and the equitable right in favour of the transferee has been embodied in Section 53A. In that view of the mat ter one provision of Section 53A cannot be brought to the aid of the plaintiffs". . ^ He next relied on the following observation of bis Lordship Das J. :
"No case of oral agreement of lease having Been pleaded, there is no question of looking at the document as evidence of such an agreement."
His Lordship, however, further on made the following observation :
"I do not wish to make any observations regarding a hypothetical case where the lease is effected by an oral agreement accompanied by delivery of possession and there is also an unregistered instrument evidencing it. In such a case the question may arise if the existence of the unregistered instrument prevents the passing of title by delivery. If and when such a question arises, the answer may have to be given with reference to Section 49, Registration Act, 1908, after its amendment in 1929."
In this case the lease was not for agricultural purpose or of agricultural lands; the lease was for extracting fire clay in certain villages. The lease was, therefore, governed. by Sections 105 and 107 of the Transfer of Property Act. This case therefore, in my opinion, has no application to the present case.
10. In the present case the lease is of agricultural land for agricultural purposes. Under Section 117 of the Transfer of Property Act none of the provisions of Chapter 5 apply to leases for agricultural purposes, except, in so far as the State Government may by notification, declare all or any of such provisions to be so applicable in the case of all or any of such leases. There is, therefore, no doubt that the present case is governed by the Bihar Tenancy Act. To such a case the principles laid down in Loknath Singh v. Chottan Barht, AIR 1946 Pat 22 : ILR 24 Pat 429 (D). and Bi-shambhar Narain v. Ajodhya Bam, AIR 1946 Pat 407. (E) would apply.
It is well-established by these authorities that it is open to a landlord to create a tenancy by giving possession, and accepting rent, and clearly, therefore, such a tenancy can be proved by evidence other than the production of the unregistered hukumnama by which the tenant takes settlement of an agricultural land from the landlord. There is no provision in the Bihar Tenancy Act, which defines a lease or prescribes the mode for the creation of an agricultural lease.
Therefore, the long standing practice to treat a kabuliyat, executed by the lessee and accepted by the lessor, as the instrument creating a tenancy has not in any way been affected by the Transfer of Property Act. An agricultural lease may be made orally and if the subsequent acts and conduct of the parties disclose that the lease so created was acted upon the lease is a valid lease in law, Therefore, the lease in the present case was a valid lease.
11. Even in cases of leases governed by Section 107 of the Transfer of Property Act it has been held by a Division Bench of the Allahabad High Court in Sheo Dulare Lal Sah v. Anant Ram, AIR 1954 All 475 (F) that where the lessor did not execute any document, and it was the lessee alone who executed a kabuliyat and the lessee was in possession of the property after the execution of the Kabuliat, it may be presumed under Section 114, Evidence Act that there must have been an oral agreement between the lessor and lessee agreeing to the terms on which the lessee was being put in possession of the property and there was, therefore, an oral agreement accompanied by delivery of possession which satisfied the requirements of Section 107.
12. The above mentioned case of AIR 1946 Pat 407 (E) is more to the point, because ia this case the settlement was made on the basis of two unregistered hukumnamas, and the hukumnamas were not taken into evidence as they were unregistered, but still both the courts below had held that the plaintiff's tenancy had been established by proof of his possession, payment of rent, and obtaining receipts from the proprietors. In this case it was contended that the unregistered hukum-namas being 'inadmissible, the existence of the tenancy could not be proved by any other evidence. His Lordship Meredith J., who delivered the judgment of the Court observed :--
"It is, in fact, well-settled in a series of cases going back to Amrir Ali v. Yakub All Khan, ILR 41 Cal 347 : AIR 1915 Cal 39 (G), that a tenancy can be proved without proving the lease, if there be any".
13. This contention of Mr. Singh, therefore, must also be overruled.
14. It was also argued in this connection relying on Pulukuri Kottaya v. Emperor, AIR 1947 PC 67 : 74 Ind App 65 (H) that where in a case evidence has been admitted which ought not to have been admitted it is the duty of the court to apply its mind to the question whether, after discarding the evidence improperly admitted, there is left sufficient evidence to justify the finding, as stated in Section 167, Evidence Act.
In my opinion, this principle does not apply to the present case. Because there is no document which has been improperly admitted. The two receipts, exhibits la and 1b, about which this contention was put forward, were properly admitted, as they were proved by Mathura, who granted these receipts during the period he himself was the malik of. the, joint family and managing as such the affairs of the family including that of Jadunath who was at the time of the partition a minor;
The Courts below definitely found that there was no evidence to prove that these two receipts had been forged and fabricated by Mathura. They therefore, accepted the evidence of Mathura, and the genuineness of these two receipts.
15. In the result the appeal fails, and is dismissed with cost.