Patna High Court
Mathura Prasad vs Naju Khan And Thakur Gope And Ors. on 23 July, 1921
Equivalent citations: 80IND. CAS.568, AIR 1921 PATNA 463
JUDGMENT Jwala Prasad, Acting C.J. 1. This is an appeal by the defendant first party against whom the plaintiff has obtained a decree for ejectment from the land in suit. The land was settled with the plaintiff for a term of 9 years from 1316 to 1324 F. By a kabala dated the 17th March 1917 it was settled with the defendant first party by the defendants 2 to 7 who are the maliks proprietors of a 7 annas share. Defendants 8 and 9 are proprietors of the remaining 9 annas of the milkiat right by virtue of their purchase on the 9th June 1918 from the defendants Nos. 1 and 2 of the third party defendants. They of course were not parties to the settlement with the defendant first party. On the strength of his settlement the defendant first party dispossessed the plaintiff from the land in dispute. The plaintiff instituted criminal proceedings which were dismissed on the 12th January 1918 and subsequently in a proceeding under Section 144 started at the instance of the plaintiff the possession of the defendant was confirmed. Hence the plaintiff instituted the present suit to recover possession of the land from the defendant first party making all the landlords parties to the suit. The chief ground upon which the plaintiff claims the land is that although his lease expired in 1224 F, that is, September 1917, yet he continued to be in possession of the land and was entitled to hold over unless and until he was lawfully ejected under the Bengal Tenancy Act by the landlords The landlords did not contest the suit and defendants 8 and 9 pleaded ignorance of the settlement either with the plaintiff or the defendant first party. The defendant first party contests the suit upon the ground that after the expiry of the lease of the plaintiff he was a mere trespasser upon the land and was liable to be ejected by the defendant who had taken settlement of the land from the landlords. 2. The plaintiff's contention prevailed in the Courts below. They were of opinion that the plaintiff was a non-occupancy tenant in respect of the land in dispute and after the expiry of the term he held over on the terms of his original lease and that he was therefore not a trespasser. The defendant had not taken settlement from all the proprietors and the settlement was not bona fide. He was a mere trespasser and had no right to dispossess the plaintiff. 3. The position taken by the Courts below appears to us to be untenable. The land was leased for a term of years and after the expiry of the lease the landlords were entitled to eject the plaintiff. He could hold over only with the consent of the landlords. The principle of Section 116 of the Transfer of Property Act applying to the holding over by a tenant after the expiry of his lease implies that he was left in occupation of the tenancy by the consent of the landlords express or implied and that is the reason why the landlords are entitled to enforce the terms of the expired lease. Unless there was a new privity of contract between the parties after the expiry of the term, on no principle can the old terms be enforced as between the parties. In the present case far from there being any consent the plaintiff's case is that the landlords are in collusion with the defendant 1st party and that he was dispossessed on account of that collusion. The dispossession in the present case therefore is virtually by the landlords. The plaintiffs therefore had no title to the land and his suit for a declaration of title must fail. As he was not in lawful possession, that is to say, without the permission of the landlords, his possession was no better than that of a trespasser, and once having been out of the land he cannot recover possession of it on the strength of his former possession when dispossession has taken place by a person who ostensibly claims to have settlement from the landlords. The question of bona, fides or mala fides does not at all arise and I have not been able to appreciate the use of those terms by the learned Subordinate Judge. Even if the settlement was made by the landlord for the purpose of dispossessing the plaintiff that would be a valid and bona fide settlement, the object being lawful as the term had already expired and every landlord is expected to settle his land in anticipation to take effect from the expiry of the previous settlement. Nor does it matter that the settlement with the defendant first party was only by some of the landlords. It appears that the settlement was by the landlords defendants 2 to 7 of the 3rd party, defendants were the entire body of landlords on the date of the settlement with the 1st party. Defendants 8 and 9 were purchasers from some of those defendants at a date subsequent to the settlement. Even if the settlement was as I observed above by some of the landlords the title of the defendant first party cannot be said to be so defective as to render him a trespasser on the strength of it. 4. The result is that differing from the view taken by the Courts below we set aside the judgment and decree of the Courts below and dismiss the plaintiff's suit with costs throughout. Ross, J.
5. I agree.