Patna High Court
Sheogobind Bhakat And Ors. vs Sujan Mahto And Ors. on 4 November, 1959
Equivalent citations: AIR1960PAT156, AIR 1960 PATNA 156
JUDGMENT S.C. Prasad, J.
1. This is an appeal by the plaintiffs against the judgment of the Subordinate Judge of Dhanbad reversing a decision of the 2nd Additional Munsif of the same place in a suit which had been filed by the plaintiffs for recovery of Khas possession after ejecting the defendant from the disputed lands which originally belonged to Amrit Mahto and Samrit Mahto, who had held their lands as Jalsasan right in village Saridhola.
Samrit Mahto had mortgaged them to one Sheogobind Bhakat in 1899 and a decree had been passed on the basis of the mortgage before the passing of the Chotanagpur Tenancy Act, 1909. In execution of that decree in 1910 the lands in dispute were sold to and purchased by one Parmesh-war Bhakat, the then Manager & Karta of the joint family of the plaintiffs. Thereafter delivery ot possession was also taken.
The defendant, it was said, started trouble along with the son of Amrit and Ahlad Mahto and a title suit was filed in respect of half share obtained by the mortgage decree for declaration of title and partition. The suit was contested but was decreed in favour of the plaintiffs. The decree became final after the High Court confirmed it.
In pursuance of that final decree delivery of possession was obtained by Parmeshwar Bhagat who remained in possession for four years and after his death Jageshwar Bhakat, father of the plaintiffs 1 to 4 became Karta of the joint family and came in possession of the lands.
He also remained in Khas possession for four years and then settled the lands in khut bhag with one of the sons of Samrit Mahto and Sujan Mahto by a registered Qabuliat dated the 24th Jaistha, 1340 B.S.
2. After subsequent partition between Jagesh-war on one side and sons of Parmeshwar on the other, the lands in dispute fell into the share of Jageshwar and his sons, who are the plaintiffs in this suit. It was further alleged by the plaintiffs that after the expiry of the lease of khut bhag which was for one year, the defendant Sujan was allowed to continue in possession of the Mal bhag settlement.
The rent was realised from him for a number of years till 1357 B.S. in which year the defendant stopped making payment of that rent. The plaintiffs then served a notice on the defendant through a pleader demanding Rs. 350/- as price of the mal bhag paddy which was due to them. In reply to that notice the defendant denied the title of the plaintiffs. Thereafter the plaintiffs sent another notice to the defendant asking him to quit the lands, but the defendant did not comply with that notice and then the plaintiffs filed this suit.
3. The defence of the defendant, who had contested the suit was that no title had passed to Parmeshwar Bhagat and that no delivery of possession had been taken. The defendant also denied the knowledge of the title suit for partition and delivery of possession in execution of the decree in that suit. The main contention of the defendant, however, was that he had been in possession of the lands for more than 40 years and had never taken them to Khut bhag or mal bhag from the plaintiffs.
He claimed to be in possession of the lands in his own right to the knowledge of the plaintiffs and their predecessors by cultivating the lands and appropriating their produce throughout for the above period and therefore, according to the defendant, the plaintiffs were not entitled to claim recovery of possession of the disputed lands.
4. It was found by the trial court that the plaintiffs had title to the lands by virtue of the purchase and delivery of possession and also by partition. It was further held that actually the lands had been settled with the defendant in Khut bhag for one year and after that in mal bhag. The defendant's possession, therefore, was permissive in nature and consequently the plaintiffs were entitled to eject him. It, therefore, granted a decree to the plaintiffs.
5. The learned Subordinate Judge on appeal agreed with the finding of the learned Munsif that the plaintiffs had acquired title to the lands but disagreed with him on the other points holding that though the lands had been settled with the defendant for one year in 1340 B.S. on Khut Bhag, the case of the plaintiffs that the lands were settled subsequently with the defendant in mal bhag was not correct and as the suit had been filed more than 12 years after the expiry of the Khut Bhag tenancy was barred by Article 139 of the Indian Limitation Act. Although the learned Subordinate Judge has not mentioned Article 139 of the Limitation Act in his judgment, substantially he has come to this finding. The plaintiffs have come up in appeal to this court.
6. It has been firstly urged by the learned counsel for the appellants that the finding of the learned Subordinate Judge that the plaintiffs had failed to prove mal bhag settlement was not in accordance with law. I am not prepared to accept this argument of the learned counsel for the appellants. It is clear from the judgment of the learned Subordinate Judge that he has come to this finding after consideration of the evidence.
He has differed from the learned Munsif and in doing so he has considered the reasons given by the learned Munsif in coming to the contrary finding. In my opinion, the finding of the learned Subordinate Judge oh this point is not open to any interference and it must be taken as a matter of fact, that the plaintiffs had failed to prove that the defendant had been in possession of the lands after 1340 B.S. in pursuance of any agreement of settlement between the parties.
7. It has been urged by the learned counsel for the appellants that the fact that the defendant had been allowed to remain in possession of the lands for 25 years or 30 (sic) years should have been considered by the learned Subordinate Judge as raising the presumption that the defendant had remained in possession of the lands with the assent of the landlords, the plaintiffs, so as to bring the suit within principle of settlement of Section 116 of the Transfer of Property Act, which deals with the continuance of possession by the lessee holding over after the expiry of the fixed period of the lease.
In my opinion there is no substance in this contention of the learned counsel for the appellants. No presumption can in the circumstances, of this case, be drawn merely on the ground of possession of the defendants and silence of the plaintiffs on the basis that this amounted to an assent on their part in the continuance of the possession of them as tenant on the land as contemplated by Section 116 of the Transfer of Property Act.
8. The next argument of the learned counsel for the appellants is that the view taken by the learned Munsif that it was for the defendant to show that he had been in possession adversely to the plaintiffs to their knowledge for more than 12 years before the suit had been filed by them was the correct view and this was not a case in which Article 139 of the Indian Limitation Act was applicable. Learned Counsel has relied upon a number of rulings in support of his contention.
He has also urged that the defendant was estopped from challenging the title of the plaintiffs so long as he had not surrendered the lands in their favour. For this argument he has relied upon the case of Bhaiganti Bewa v. Himmat Bidyakar, 24 Cal LJ 103: (AIR 1917 Cal 498) and Bilas Kunwar v. Desraj Ranjit Singh, ILR 37 All 557: (AIR 1915 PC 96). No question of estoppel as against the defendant arises in this case, because the real contention of the defendant is that the claim of the plaintiffs is barred by limitation under, Article 139 of the Indian Limitation Act.
He does not say that the plaintiffs were not the owners of the land and that at the time when the Khut Bhag Settlement had been made with him they had no right in the land. The facts of these two cases show that the question of estoppel was allowed to be raised in a different context of facts which were different from the facts of the present case.
9. As regards the other cases cited by the learned Counsel for the appellants, they also, in my opinion, do not apply to the facts of this case, because in those cases it was found that there had been subsequent payment of rent by the tenant, who had held over, and acceptance thereof by the landlord. In these circumstances, it was held that those facts clearly proved that there has been assent indicated by the landlord unmistakably by the act of acceptance of rent from the tenant who had held over and consequently under Section 116 of the Transfer of Property Act relationship of landlord and tenant was created and the landlord was, therefore, entitled to sue for ejectment of the defendant after determining the tenancy by a subsequent notice.
These cases are: Ramlochan Baid v. Kamakhya Narain Singh, 4 Pat LT 123: (AIR 1923 Pat 201). Madhavrao Waman v. Raghunath Venkatesh, 50 Ind App 255: (AIR 1923 PC 205), Nainapillai Marakayar v. Ramanathan Chettiar, 51 Ind App 83: (AIR 1924 PC 65) and Kamakhya Narayan Singh v. Ram Raksha Singh, ILR 7 Pat 649: (AIR 1928 PC 146). It may also be pointed out that the two Privy Council cases referred to above really deal with another matter. Indeed a tenant cannot be allowed to say that he had prescribed for higher right during the subsistence of the Tenancy of a particular kind, against the landlord.
That appears to me to be the real point which was decided by these two cases. The case of ILR 7 Patna 649: (AIR 1928 PC 146), is also a case really speaking on a different point. The present point did not actually arise there as it has arisen here and this case cannot be authority for the argument which has been put forward by the learned counsel for the appellants before me in this case.
10. The case of Ram Kumar Das v. Jagdish Chandra Deo, Dhabol Deb, AIR 1952 SC 23, is also clearly distinguishable. There, as will appear from the judgment of the Supreme Court at page 26, three questions arose in that case, but from the judgment it is clear that the appeal was disposed of on the first of these questions, which was as follows:
"What was the nature of the tenancy created by acceptance of rent by the Receiver from the defendant on 8-3-1925? If it was a tenancy from month to month it is not disputed on behalf of the defendant that no question of holding over would at all arise and the plaintiff would be entitled to succeed."
The third point was like this:
"If the payment and acceptance of rent in March, 1926 brought into existence tenancy for another year, was there any subsequent tenancy created after the second year, although there was no demand or acceptance of rent by the landlord since then?"
But this third point was left undecided because on account of the finding on the first point no other question arose for decision. It is really the third point, which in a way arises in the present case. Consequently this Supreme Court decision cannot be of any assistance to the learned counsel for the appellants in this case.
So far as the first point is concerned it was decided having regard to the facts proved in that case, namely, that the defendant had remained in possession of the land belonging to the plaintiff with the permission of the Receiver who represented the plaintiffs estate, and had paid rent to the latter that it followed by application of Section 106 of the Transfer of Property Act that the tenancy was from month to month, and therefore, no question of holding over arose and the plaintiff was entitled to succeed even if no rent had been paid for a period of 20 years after the last payment had been made in 1926. It is clear therefore, that the point, which has been raised before me was not accepted by the Supreme Court in that case.
11. The last case, and it is the only case which in my opinion, supports the argument of the learned Counsel for the appellants, is the case of Onkar Prasad v. Dhani Ram, AIR 1930 All 177, but as. will appear later on, this Allahabad case does not appear to me a good law, because that very High Court in other cases has held otherwise.
Learned counsel for the respondents has referred to the cases of Patna, Bombay, Allahabad and Lahore High Courts and also to one case of the Privy Council, which was a Calcutta Case in which it had been held that where a tenancy is created for a fixed period and if after the expiry of that period the tenant continues to remain in possession of the land he becomes a tenant by sufferance and his possession is wrongful as against the landlord, unless there is evidence to show that subsequently the landlord had given his affirmative consent to his continuance, thereby allowing the person to continue in possession after the expiry of the lease as tenant converting him from a tenant by sufferance into a tenant at will.
There must, however, be clear evidence on this point. It is true that the evidence may not be of a weighty character, slight evidence may suffice but nevertheless there ought to be some evidence to this effect. Unless this is the position, the possession of a tenant by sufferance does not prevent limitation from running under Article 139 of the Indian Limitation Act and the landlord must bring the suit for recovery of possession within 12 years from the date on which the tenancy determined.
The cases are: Kantheppa v. Sheshappa, ILR 22 Bom 893, Chandri v. Daji Bhau, ILR 24 Bom 504, Purshottam Yashwant v. Vishnu Gorathe, AIR 1927 Bom 650, Bhagwan Ramanuj v. Ramkrishna Bose, AIR 1922 PC 184, Pusa Mal v. Makdum Baksh, ILR 31 All 514, Bisheshar Nath v. Kundan, ILR 44 All 583: (AIR 1922 All1 318). Hari Gir v. Kamakshya Narayan, ILR 3 Pat 534: (AIR 1924 Pat 572), 4 Pat LT 123: (AIR 1923 Pat 201) and Banwari Lal v. Mt. Hussaini, AIR 1940 Lah 410. It is interesting to note that the learned Counsel for the appellants has also relied upon the case of 4 Pat LT 123: (AIR 1923 Pat 201).
Learned counsel for the respondents had pointed out that this case also shows that so long as there is no consent by the landlord to the continuance of possession of the defendant after the expiry of the term of the lease, the tenant becomes a tenant by sufferance and that does not stop the limitation running under Article 139 of the Indian Limitation Act.
12. There is, of course, one case reported in Gangadhar Hari Karkare v. Morbhat Purohit, ILR 18 Bom 525, one of the earliest cases of that court. That case no doubt, is in favour of the appellants but the subsequent Bombay cases, which I have referred to above show that this 18 Born 525 case was held to have been overruled and no longer a good law. It is noticeable that in the case of AIR 1930 All 177, the two earlier Allahabad cases referred to above have not been at all considered.
In my opinion, the authorities overwhelmingly favour the view that in the absence of any positive proof of the fact that the landlord has consented to the continuance of the tenant, who had held over, the tenant becomes a tenant by sufferance and as such his possession would be a sufficient bar to the claim of the landlord for recovery of possession from him if he has not been sued for eviction within 12 years from the date on which the tenancy, which was for a fixed period, had expired.
13. This is the legal position governing the facts found in this case, which are that the plain-
tiffs had settled this land with the defendant for one year after the expiry of which the defendant had continued in possession without payment of rent and without any evidence of assent on behalf of the plaintiffs that he should remain in possession. That being the position, the possession of the defendant was that of a tenant by sufferance.
That possession was wrongful as 12 years had elapsed from the date on which that tenancy expired and before the suit was filed by the plaintiffs, the defendant remaining in possession during this period, the plaintiffs' claim was barred by limitation. The Court below w.as, therefore, right in dismissing the suit,
14. There is no substance in this appeal. It is dismissed with costs.