Patna High Court
Ramnath Ram vs Jamuna Prasad And Ors. on 5 April, 1948
Equivalent citations: AIR1952PAT95, AIR 1952 PATNA 95
JUDGMENT Ray, J.
1. This is a defendant's appeal in a suit in ejectment and for recovery of arrears of rent for the years 1347 to 1350. The plaintiff's father Raghunandan, had let out 2 bighas 3 kathas of kasht lands for the purpose of cultivation on a rental of Rs. 24/- to the defendant for a period of five years from 1346 to 1350 Ps. The defendant had executed a registered kabuliat on the 5-9-1938, to that effect. The defendant defaulted in payment of rent for the years in sit. Hence, the plaintiff instituted the suit for the reliefs already stated. The basis of the claim for ejectment is that defendant is an under-raiyat holding his interest for a term of years under a registered document, and hence liable to ejectment without any further notice to quit on expiry of the term of the written lease.
2. The defendant, on the other hand, denies the aforesaid settlement of date 5-9-38, and claims to have been in possession as shikmidar since 1327 Fasli, and, as such, to have acquired a right of occupancy under Section 48-A of the Bihar Tenancy Act (inserted by an amending Act of 1938). The right to recover rent at the rate of Rs. 24/- is also challenged. According to the defendant, the kabuliat was obtained from him by the plaintiff through, fraud.
3. The facts found by both the Courts below are (1) that the defendant was in possession as 'shikmidar' of the disputed lands along with some other lands since 1328 to 1344; (2) that at the end of 1344 or beginning of 1345 the defendant surrendered possession of the under-raiyati holding and the plaintiff re-entered; (3) that thereafter the plaintiff sold a portion of those very lands and built a bungalow and sank a well on another portion and was in possession of the rest by khas cultivation throughout the year 1345; and (4) that thereafter the present settlement took place by virtue of which the defendant was inducted into the lands in suit in the year 1346 under a written lease for a term of 5 years (1346 to 1350 inclusive).
4. Both the Courts below decreed the plaintiff's suit and negatived the defendant's claim of acquisition of occupancy right by virtue of the provisions of the Amended Tenancy Act. Hence, the second appeal.
5. The contention in second appeal is that on account of retrospective operation of Section 48-A, the defendant shall be deemed to have acquired occupancy right by the year 1344 accruing from his continuous possession as under-raiyat for more than 12 years (1327 to 1344) wholly before the commencement of the amending Act, and that, there-fore, any contract which had the effect of bargaining the defendant out of his acquired occupancy rights was ineffective so as to deprive him of that right.
6. In support of the above contention, based, as it is, upon the retrospective operation of the section, a number of authorities have been cited. Before I come to deal with them, I should observe that there is a very simple and clear answer to the contention of the learned Counsel. Assuming, though not deciding, that by the time of the Fasli year 1344 the defendant shall be deemed to have acquired occupancy right, it would have been quite open to him to surrender the same in favour of the landlord by giving up possession in his favour and allowing him to re-enter. Then the occupancy right shall cease and the lands would become bakasht lands of the landlord. Any subsequent settlement for a term of years under a written lease for less than the statutory period of 12 years would neither convey nor attract an occupancy right under the provisions of the new section. This, I think, is a complete answer to the defendant's case. Voluntary giving up of occupancy holding in favour of the landlord does not amount to contracting out of occupancy rights. It is optional with an occupancy raiyat either to continue holding the lands, or to give it up to the landlord though he cannot enter into a contract to the effect that he would be holding the lands as a raiyat but would not acquire any occupancy rights therein. Keeping this distinction in view, it is quite plain that the arrangement by which the defendant gave up the lands on to the possession of the plaintiff, be it for whatever short a period was a valid one and operated to extinguish the defendant's right of occupancy, if any.
7. But on discussion of the authorities which I am going to refer presently, I am of opinion that the new Section 48-A will have no operation in the present case so as to give the defendant any right of occupancy in the disputed lands. The basis of all the authorities, however, is the decision of the Privy Council in the case of 'K. C. Mukherjee v. Mt. Ramratan Kuer', 17 Pat L T 25. The decision involved a question of retrospective operation of Section 26-N of the amended Bihar Tenancy Act. The section reads as follows:
"Every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift or will made before the first day of January 1923....".
The material observations of their Lordships in the words of Sir Gorge Rankin are :
"The object of this section can only be to quiet titles which are more than ten years old, and to ensure that if during these ten years the transferee has not been ejected he shall have the right to remain on the land'. Within this class the legislature has not thought fit to discriminate against tenants whose right is under challenge in a suit, a course which it may well have regarded as invidious or unnecessary. As substantive rights of landlords and their accrued causes of action were to be abrogated, respect for pending suits over old transfers cannot be assumed."
The dictum as expressed above manifests that retrospective operation of the section was not intended to revive the rights of transferees who had either been ejected to the complete extinguishment of their right by transfer, but could protect him whose right as transferee 'as against the landlord' was under challenge at the time the newly introduced section came into force. This decision was first followed in this Court in the case of 'Muhammad Shafait v. Nithali Ram', 18 Pat L T 345. As in the instant case, the contention there centred round the fact that the landlord had by the time the section came into force, in execution of a decree for arrears of rent obtained against the recorded tenants in disregard of the transferee, purchased the holding and had obtained possession thereof through Court, and that thus the holding had come to an end thereby excluding application of the section. This contention was met by Khwaja Mohammad Noor, J, in the following terms :
"In this particular case the defendant landlord did not enter into possession of the holding in his capacity as landlord having treated it as an abandoned holding. He entered into it as the purchaser in execution of a simple money decree. Now when he is called upon to surrender its possession to the plaintiffs who have purchased it from the original raiyats and whose title has become complete by the operation of law, contends that he is entitled to remain on the land because he is the landlord. He cannot be allowed to do so, as there was no abandonment. He must be deemed to have given his consent to the transfer. I think the clear meaning of the section is that when the Act came into force, the plaintiffs' title to the land which they had purchased from the original raiyats became complete. There is no answer to the suit since then,"
As the decision explains itself more clearly than I can do it in my own words. I should not hazard my comments thereon.
8. The next case that has been brought to our notice in course of argument is the case of 'Thakur Rai v. Issardyal Prashad', 17 Pat 333. This was a decision upon retrospective application of Section 26-N. The contention advanced in that case was "the section is only retrospective to the extent of its relating to titles which have not been disturbed." Wort J. in his judgment amplifies this submission of the Counsel in the following words:
"The argument is that the action of 1931 having been brought against all the recorded tenants, as the Judge in the Court below has found, he (the landlord) obtained a rent decree the result of which was that the plaintiff's title was brought to an end.... The words relied upon by the respondents (from the decision of Sir George Rankin in the Privy Council) are 'and to ensure that if during those ten years the transferee has not been ejected he shall have the right to remain on the land', and it is the contention of the respondents that the plaintiff has been ejected and therefore the decision of their Lordships of the Privy Council will have the limited effect which the words of Sir George Rankin indicate".
In answer to this contention his Lordship (Wort, J.) said:
"But the answer to that is that the plaintiff has not been affected, he was not a party to the action, and if he can show that he has a title as well as that he was not affected by the decree of 1931, it would appear that his right of action is clearly established,"
Later in course of the judgment his Lordship quoted with approval the decision of Khwaja Mohammad Noor, J. in '18 P L T 345."
9. The decision in the case of 'Sadhu Sharan Singh v. Deonath Saran Rai', 22 Pat 411 is more or less directly in point, at least in the sense that it deals with retrospective application of the very .S. 48-A with which we are to deal in the case before us. The short facts on which the decision of that case turned were that the landlord had served a notice to quit on the under-raiyat in accordance with the provisions of Section 49 of the Act. Thereafter he instituted a suit for ejectment. During the pendency thereof Section 48-A was enacted. The question that arose for decision was whether the under-tenancy had been terminated by service of notice to quit, and whether if it did so, the enactment of Section 48-A would still confer a right of occupancy to the under-raiyat for the time being so as to defeat the plaintiff-landlord's claim to eject and re-enter. His Lordship Chatterji, J. met the contention with the following words:
"This point, however, has been considered by this Court in the cases of 'Agin Singh v. Bhudeo Singh', 1940 Pat W N 272, 'Bhagwati Prasad v. Sahdeo Upadhya', 22 Pat L T 356 and Ram Charitar Sah v. Doma Mian', 1942 Pat W N 75, all of them decided by Division Bench. In all these cases it has been consistently held that by reason of the words 'shall be deemed to have acquired, on the expiration of that period a right of occupancy', Section 48-A is clearly retrospective and applies to all persons who have held as under-raiyats and who have not been ejected when the section came into force. The contention that the under-raiyati interest of Gaya Singh had already been determined by service of notice before the institution of the suit and therefore the rights of the parties could not be affected by Section 48-A, which came into force after such determination, is without any substance. The service of notice merely furnished a cause of action for the ejectment suit, because without it no suit would lie under Section 49. But the notice could not extinguish the under-raiyati interest of Gaya Singh. Section 89 of the Bihar Tenancy Act provides:
'No tenant shall be ejected from his tenure or holding except in execution of a decree.' Until Gaya Singh was ejected in execution of a decree, his right could not be extinguished, Section 48-A is, by express terms, made retrospective, and it has been held in the said previous decisions of this Court that it would apply to a pending action. There is no reason to dissent from the view taken in these decisions."
I should further add that service of notice to quit does terminate a tenancy governed by the T. P. Act because the Act says so expressly, while there is no such provision in the Bihar Tenancy Act. Section 49 which provides for service of notice to quit is expressed in different terms, namely, that an under-raiyat shall not be ejected except only six months after service of a notice to quit etc. The ratio of the decision, however, is that until the under-raiyat has been ejected, he can have the benefit of the retrospective operation of the section.
10. In the case of 'Raja Jha v. Ram Chandra Jha', 22 Pat L T 505 to which my learned brother was a party and which turned upon retrospective application of Section 26-N the accepted proposition as correctly summarised in the headnote was:
"Though Section 26-N, Bihar Tenancy Act, was expressly made retrospective it could not possibly affect rent decrees which had been obtained and which had been fully executed previous to the section coming into force. The section would apply to all cases which had not been the subject-matter of litigation or which were actually the subject-matter of litigation when the amending Act came into force, namely, on the 10th of June, 1935. The section can have no application whatsoever when the transferee had been lawfully ejected before the amending Apt came into operation."
I should note, however, that on a certain point not material to the present case the decision in this case is in conflict with the decision in the case of 'Thakur Rai v. Issardeyal', 17 Pat 333 in which the tenancy had been sold in execution of a rent decree purchased by the landlord and had been taken possession of on ejecting the transferee, out it was held that the transferee could, on the strength of the newly added S, 26-N, recover possession. This position was almost directly negatived in the case of 'Raja Jha v. Ram Chandra Jha', 22 P L T 505. However, this conflict, if at all, has no reference to the question under consideration before us.
11. The only other case cited was 'Chandrika Prasad v. Ram Lal', 1939 Pat W N 661. This decision related to interpretation of Section 26-N. An occupancy holding had been transferred in the year 1912 and the transferee continued in possession up till the time when litigation arose. It was held that notwithstanding that the holding had passed to the plaintiff-landlord by his auction-purchase in execution of a rent decree validly and lawfully obtained against the recorded tenants, he could not eject the transferee as by the time he brought the suit for the purpose, the transferee had acquired a right of occupancy by operation of the section. The distinguishing feature between this case and the case in "22 Pat L T 505' (both being judgments of Harries, C. J.) is that in the latter the transferee had been ejected by the auction-purchaser by virtue of his purchase in execution of a rent decree, while in the former '1939 Pat W N 661' there was auction sale of the occupancy holding in execution of the rent decree but the transferee continued to be in possession.
12. The principle that emerges out of review of the above authorities is that the section operates retrospectively on titles otherwise incomplete which are either in existence accompanied with possession or which are under challenge being sub judice whether accompanied or not with possession. In the present case, however, both title and possession of the under-raiyat have lawfully come to an end, and during the year 1345 the landlord had remained in khas occupation of the lands. Later when he settled the disputed lands with the defendant he did not mean to restore the previous holding of which admittedly he had sold one part and had appropriated, for his own purpose another part and have the tenant only the remainder for a term of years on condition that the defendant should vacate the same on its expiry. As I hold that the defendant could not be deemed to have acquired occupancy right in the year 1946 when the new settlement was arrived at between him and the landlord, he cannot challenge the validity of the settlement on the ground that it contravenes the statutory prohibition in the Bihar Tenancy Act that no occupancy raiyat can contract himself out of his rights as such.
13. Section 48-A runs as follows:
"Every person who, for a period of twelve years, whether wholly or partly before or after the commencement of the Bihar Tenancy (Amendment) Act, 1938, has continuously held land as an under-raiyat in any village, whether under a lease or otherwise, shall be deemed to have acquired, on the expiration of that period, a right of occupancy In the land which he has so held for the said period."
The learned Counsel for the appellant lays stress upon the words "shall be deemed to have acquired on the expiration of that period (of 12 years) a right of occupancy" and contends that in the circumstances of this case, the defendant shall be deemed to have acquired occupancy right by the end of the year 1344 when he is said to have given up the lands to the landlord on the footing that he was an under-raiyat. But the fallacy in this argument consists in over-looking the fact as to when he shall be so deemed. There can be no doubt that he shall be so deemed at the time when the section comes into operation but the right that he shall be deemed to have acquired must date back to the time when he completed 12 years' possession as under-raiyat. But if no under raiyati right is in existence either actually or even notion-ally at the date the section comes into force, there is no subject on which the section would operate and which may be so deemed within the purview of the section.
14. In consideration of what I have said above, I have no hesitation in pronouncing that the appeal has no merit, and, is, therefore, dismissed with costs.
Manohar Lall, J.
15. I agree. It is difficult for me to understand how the defendant can claim to be protected by the retrospective operation of Section 48-A of the Bihar Tenancy Act, because the defendant on the findings of fact had surrendered and given up possession of his holding to the landlord before this Act came into force and he was let into possession under a new arrangement between him and the landlord about one year after he gave up the possession of the land. It has also been found that the area of which he was put in possession, was a different area from the area of the original holding.