Patna High Court
Jhalku Singh And Ors. vs Chandrika Singh And Ors. on 29 March, 1961
Equivalent citations: AIR1961PAT350, AIR 1961 PATNA 350
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT N.L. Untwalia, J.
1. This second appeal by the plaintiffs has arisen under the fallowing facts and circumsances. There are two plots of land bearing numbers 1766 and 1769, portions of which are in dispute in this case. According to the survey khatian, the area of plot No. 1766 was 1 katha 18 dhurs and plot No. 1769, which is to the south of plot No. 1766, had an area of 4 kathas 16 dhurs. They appertained to touzi No. 2845 under gairmazarua malik khata No. 82. Plot 1766 contained a house and sahan of the maliks, the ancestors and predecessors-in-interest of the pro forma defendants.
The principal defendants in the suit are defendants 1 to 3. Plot 1769 was a parti piece of land belonging to the said maliks. By a collectorate partition, the entire plot No. 1766 and the western portion of plot No. 1769 measuring 3 kathas, 12 dhurs fell in tauzi No. 15477, the 16 annas maliks of which, on partition, were the predecessors-in-interest of the pro forma defendants. The remaining 1 katha 4 dhurs of plot No. 1769 was allotted to tauzi No. 15474, the 16 annas proprietors of which were the plaintiffs. In a rough sketch map appended to the plaint, that portion of plot No. 1769 which fell to the share of the plaintiffs by the partition of the tauzis has been shown in the stripped portion of the map. To the east of this is trip plaintilis' another plot, namely, plot No. 1767. The portion of plots 1766 and 1769 measuring 1 katha 10 dhurs, which is the suit land, has been shown in red colour in the sketch map. The disputed portion of plot No. 1766 is its eastern portion and further east of this is the plot of the principal defendants bearing number 1765.
The portion of plot No. 1769, which fell to the plaintiffs share on partition of the tauzis, is to the east of the disputed portion of that plot. According to the plaintiffs' case, the landlords, namely, the predecessors-in-interest of the pro forma defendants shifted to another place and the latrine, osara, nads, Khuntas, etc., which had, been constructed by them several years ago in the disputed land, were of no use to them. The plaintiffs, therefore, took oral settlement of the disputed land measuring 1 katha 10 dhurs in Aswin, 1357 fasli, on payment of a salami of Rs. 1000/-, at an annual fixed rental of annas eight only.
The suit land was settled along with the latrine, osra, nads, etc., standing over it. They (plaintiffs) came in physical possession of the land as well as the structures standing thereon They opened some doors in their construction standing on the adjacent plots and stacked about 20000 bricks on the disputed land for further construction. A registered deed of settlement was executed in their favour by the pro forma defendants on 13-9-52 which was registered 3 or 4 days later confirming the previous settlement.
One of the landlords had not joined the-execution and, to remove that technical defect another deed was properly executed and registered by both parties on 15-6-53. Their further case-is that the principal defendants, who have got their house on plot No. 1765, on learning about the fact that a registered deed of settlement was going to be executed by the pro forma defendants in favour of the plaintiffs, lodged a false sanaha. On police report a proceeding under Section 107 of the Code of Criminal Procedure was started against both the parties.
Ultimately, it was converted into a proceeding under Section 145, Cri. P. C. and was decided against the plaintiffs. Being emboldened by that, the principal defendants dispossessed the plaintiffs from the suit property on 10-6-53. The plaintiffs have, therefore, instituted this suit for declaration of their title to and recovery of possession of the suit property as also for reeovery of either the 20000 bricks or its value amounting to Rs. 400/-. They have also prayed for a decree for mesne profits past and future.
2. The principal defendants, inter alia, have pleaded in paragraph 9 of their written statement :
"That this defendant had no privy, Baithka and cattleshed etc.; therefore he took settlement of 1 katha 10 dhurs for a salami of Rs. 50/- about 20 years ago by a sada -/I/- stamped paper and this settlement was made by the family of the pro forma deferdants by Babu Durgacharan Singh and Rajeshwar Singh with the consent of and to the knowledge of all the members of the family and since then this defendant was in peaceful possession of the property in dispute This defendant constructed privy, put Nad and pegs on plot No. 1769 and put some pegs and Osara with brick pillars having its support on a wall to the west of it. This defendant is in use of the Osara as Baithka as well as for tying cattle and keeping Bhusa etc. Plot No. 1765 is a very small house having two windows and 2 drains towards the west. The house of this defendant was previously kacha but subsequently he prepared bricks and turned some portion of the said house into pucca and with some bricks he constructed the privy on a plot No. 1769 and the pillars of Osara on Plot No. 1766 just after the settlement of the portion submitted above. This defendant and his members are using the privy, Osara, etc. and no else is in possession and occupation of the land in dispute and the constructions thereon and ties his cattle. There are still Bhusa and fuel wood on the Osara of Plot No. 1766".
The plaintiffs' story of the pro forma defendants having constructed the osara, nads, etc., was denied. It was also asserted that the plaintiffs never took any oral settlement of the disputed land with structures thereon nor had the pro forma defendants any right to do so. The principal defendants further claimed in their written statement that they had prepared a brick kiln ok 40000 bricks and had stacked 20000 bricks out of them on the disputed land for purposes of their further construction. In regard to the plaintiffs' story of dispossession from the suit !and, they said in paragraph 22 of the written statement;
".....This defendant never dispossessed the plaintiffs rather his possession was coming from before. The possession of this defendant is legal and in his own absolute and perfect rights and title".
3. The pro forma defendants also put in a written statement but they fully supported the case of the plaintiffs.
4. The learned Munsif who tried the suit decreed the plaintiffs' suit in full. He held that the pro forma defendants had subsisting title in the disputed land which was settled with the plaintiffs as alleged by them in Aswin, 1357, and that the principal defendants had failed to substantiate their case of settlement of, and constructions on, the disputed land having been made by them- He has further held :
"The defendants' story of payment of two annas rent annually to the pro forma defendants also appears to be an afterthought. There is nothing in the written statement of the 145 case Or in the W. S. of this case regarding the payment of two annas rent of the disputed land in the manner as stated by the defendant No. 1 in his oral deposition".
In regard to the bricks also, he accepted the plaintiffs' case. On appeal by the principal defendants, the learned Additional Subordinate Judge has dismissed the suit. His findings are (i) that the pro forma defendants had no subsisting title to the disputed land in Aswin, 1357. Fs.; (ii) that the bricks stacked on the disputed land which is in possession of the principal defendants belonged to them; (iii) that the plaintiffs have failed to prove that they or their predecessor-in-interest were in possession of the disputed land within 12 years of the filing of the suit; and (iv) after considering the evidence of witnesses of the principal defendants in regard to their story of settlement of, possession and construction, over the disputed land, he has arrived at the following conclusion :-
"It is true that the case of defendant No. 1 regarding the oral settlement of the disputed land in his favour is not supported by cogent evidence. It is admitted that defendant No. 1 is an old Congress worker and an old litigant. It is admitted that he has got his house contiguous east of the disputed land and there is no latrine or cow-shed in his house. It is quite probable that he managed to come in possession of the disputed land which was lying Parti contiguous west of his house and constructed the Osara an latrine over it. It appears possible that the pro forma defendants taking advantage of the absence of any document in respect of the settlement of the disputed land in favour of the principal defendants and the rise in the prices of land wanted to oust him by setting up the plaintiffs. The fact that the pro forma defendants have failed to show that the structures on the disputed land were made on their behalf and their allegation about it is unfounded clearly lends support to the case of the principal defendants that the structures were made by them".
5. Mr. Lalnarayan Sinha appearing in support of this appeal submitted that, apart from the error of law which has been committed by the learned Additional Subordinate Judge in applying Article 142 of the Limitation Act to the facts of this case, even on the case of the principal defendants as set up in the 9th paragraph of their written statement (quoted above), the plaintiffs' suit ought to be decreed. Mr. Tara Kishore Prasad appearing for the principal defendants respondents has submitted that the decision of the learned Additional Subordinate Judge is correct and that he has rightly applied Article 142 of the Limitation Act.
6. In my judgment, the decision of the court of appeal below is erroneous in law. The whole case of the principal defendants as disclosed in paragraph 9 of the written statement in effect and in the eye of law is a claim of their having acquired a tenancy-at-will in the disputed land. Nowhere they have claimed that they have acquired a permanent tenancy either according to law by a registered instrument or by prescription having entered upon the land under a void lease.
The whole case is that with the permission of the pro forma defendants or their predeces-sors-in-interest they entered upon the land on payment of a salami of Rs. 50/- evidenced by a hukumnama bearing an one anna stamp. Even that case was not accepted by the learned Munsif and has not been accepted by the learned Additional Subordinate Judge either. They cannot, on the basis of their case set up in the written statement, have a larger right in the suit land than the one which they could have got if they would have succeeded in establishing their case.
On the fact pleaded, they had no better right than the right of a tenant-at-will. On their own showing, they entered upon the land with the permission of the landlords under a void lease as they did not obtain any registered document. The effect of such entry as given in the famous book of Woodfall on Landlord and Tenant, 25th Edition (in paragraph 744 at page 305) is :
"744. Entry under void lease. If a man enters under a void lease, he is a tenant at will under the terms of the lease in, all other respects except the duration of time; and when he pays or agrees to pay any of the rent therein expressed to be reserved he becomes a tenant from year to year upon the terms of the void lease, so tar as they are applicable to and not inconsistent with a yearly tenancy".
A similar statement of law in England is found made in Halsburys' Laws of England, 3rd Edition, Volume 23, (Article 1151 at page 505) in these words:
"1151. Implied tenancy at will. A tenancy at will ..... is implied accordingly in cases of mere permissive occupation without payment of rent, ....."
The law in India is almost the same in this regard. In Mulla's Transfer of Property Act, 4th Edition, at page 600, it is stated :
"Another case of tenancy at will is that of entry into possession under a void lease"
(Vide also Ramchandra Agarwala v. Syame-swari Dasya, AIR 1925 Cal 1171.) If rent is paid, the lease becomes, in accordance with Section 106 of the Transfer of Property Act, a yearly or a monthly lease according to the purpose for which it is taken. It is well settled that a person can acquire by prescription a permanent tenancy also if he enters upon the land under a void lease provided he has been asserting and/or paying rent in pursuance of that assertion that he is a permanent tenant of the land, (vide Alakhdeo Singh v. Gaya District Board, AIR 1957 Pat 321).
In the instant case, even the alleged insufficiently stamped and unregistered document of lease has not been produced nor is there any secondary evidence of its contents. The story of principal defendants in their evidence of the rent having been paid in pursuance of the alleged settlement in their favour has not been accepted by either of the courts below. I do not feel persuaded to accept the contention put forward by Mr. Tara Kishore Prasad that in the last few lines of paragraph 22 of the written statement, which I have quoted above, the principal defendants have laid a claim of permanent right of tenancy by adverse possession.
The whole of their right which they have claimed, as I have said above, is contained in the 9th paragraph of their written statement. I, therefore, hold that even on the findings of the learned Additional Subordinate Judge the principal defendants did not acquire a right either better or higher than that of a tenant-at-will.
7. The question, which then arises, is as to whether the plaintiffs in the present suit can get a decree, on the findings of the lower appellate court, for eviction against the principal defendants. In order to decide this question, the following facts either admitted or found are to be remembered. The plaintiffs are armed with a registered deed of settlement in their favour. The principal defendants, according to my finding, were at that point of time tenants-at-will of the disputed land. It appears the pro forma defendants were also parties in the proceeding under Section 145 Cr. F.C. as would appear from the first name in the category of the second party mentioned in the order of the learned Magistrate deciding that proceeding (Ex. A-l). That would also appear from Ex. 5, the certified copy of the written statement filed in that proceeding by defendant No. 1 of the first party. It is well settled that a tenancy-at-will can be determined by a mere demand for possession either expressly or by implication. In Article 1154 at page 507 of the Halsbury's Laws of England, 3rd Edition, the law stated is: "A tenancy at will is determinable by either party on Ms expressly or impliedly intimating to the other his wish that the tenancy should be at an end".
In Article 1155, it is further stated:
"Anything which amounts to a demand of possession, although not expressed in precise and formal language, is sufficient to indicate the determination of the landlord's will. Thus, the landlord may expressly demand possession, or state that the tenant is in against his will", The law in India in regard to the mode of determination of a tenancy-at-will is not different. On the facts of the present case, therefore, even on the finding of the court of appeal below that the principal defendants were upon the land when the alleged oral settlement was made by the pro forma defendants in favour of the plaintiffs and when the registered leases were executed, it must be held that by necessary implication, at the time the proceedings under Section 145 Cr- P.C. were drawn up, the principal defendants had been asked by the pro forma defendants to quit the land and they were upon it against their will. In such a situation, the tenancy-at-will in favour of the principal defendants came to an end and the plaintiffs on the basis of the registered leases in their favour are entitled to sue and get a decree for eviction against the principal defendants from the suit land (vide Pran Kisto Dey v. Bissumbhur Sein, 11 Suth WR 80.) Of course, on the finding of the lower appellate court, a finding right or wrong but binding on me in second appeal, it was the principal defendants who had put the structures on the disputed land, namely, the osara, nads, khuntas, etc., and had stacked the 20000 bricks. It is obvious--and that was conceded to on behalf of the appellants -- that in view of the provisions of Section 108 (h) of the Transfer of Property Act, the principal defendants are entitled to remove their structures and the bricks from the disputed land. (8) In the result, I allow this appeal, set aside the decree of the lower appellate court and decree the suit of the plaintiffs appellants for declaration of title to, and khas possession, in respect of, the suit land only. The principal defendants, who are respondents 1 to 3 in the appeal, are directed to remove their structures and the bricks therefrom within three months from today and to deliver peaceful possession of the suit land to the plaintiffs, failing which they (the plaintiffs) would be entitled to execute this decree and get khas possession over the suit land through court either on removal of the structures and/or the bricks at the cost of the principal defendants or even with them if they (the principal defendants) fail or do not like to remove them. On the facts and in the circumstance of this case, I would direct the parties to bear their own cost throughout of the suit and the appeals. I do not think that, on the facts and in the circumstances of this case, the plaintiffs are entitled to any decree for mesne profits either past or future.