Gauhati High Court
Rameswar Bora And Anr. vs Dakshinpat Satra And Anr. on 29 August, 1989
Equivalent citations: AIR 1990 GAUHATI 81
JUDGMENT 1. This appeal is by two defendants in Title Suit No. 17/74 on the file of the Assistant District Judge, Jorhat. Rameswar Bora an advocate and his son Dilipeswar Bora both are defendants in the suit and appellants in the appeal. The suit was laid against them for possession of land which in the plaint is described by boundaries and is said to measure 1200 bighas (99.18 acres). Out of the said land 72 acres is under tea cultivation. The suit land is known as Jadavpur Tea Estate at Holongapar Mouza in Jorhat district. The father and son are tenants of Jadavpur Tea Estate. Their lessor is Shri Shri Jadavrai Devata along with a religious institution Satra to whom in the distance past Ahomings granted inter alia the land for establishment and maintenance of a Satra. The grant is now known as Lakheraj Bho-gobani Debottar grant. 2. The suit is laid by the Satra Adhikar Ramananda Dev Goswami. The father among the two defendants is said to be disciple of Satra Adhikar. The lease of the land commenced by Ext. 6 from March 26, 1966. The lease was to expire with the year 1995. The lease enabled the tenants to clear bushes, jungle and fell trees for tea cultivation. In 1967 when the leased land was surveyed and was found in excess by 99.18 acres. Therefore two deeds Exts. 7 and 9, on March 26, 1969 were executed in that the tenants agreed to pay additional rent of Re. 1/- per acre. The rent payable as per the above lease deeds was Rs. 16,000/- up to 1980 and Rs. 20,000/- upto 1995. 3. When tenants defaulted payment of rents on the due dates they were served notice of termination on June 28, 1973 as per Exts. 30 and 31, and sought possession of the suit land by the last day of the calendar year 1973. 4. The Satra in the plaint claimed rent of Rs. 49,820/- as arrears, Rs. 50,000/- as damages for unathorised felling of trees, Rs. 16,000/- for use and occupation of Jadavpur Tea estate after the notice of termination. Thus out of total Rs. 1,15,820/-, Rs. 15,820/- was relinquished. A money decree of Rs. 1,00,000/- was also prayed against the defendants. The suit was resisted by the tenants on the ground that termination of tenancy was not proper. The rents claimed as arrears was disputed. It was averred the lessor received rents after Exts. 31 to 31 therefore there was waiver of forfeiture. The tenants averred 67.5 acres of land was delivered out to them and they are protected under the Assam (Temporarily Settled Areas) Tenancy Act XXIII of 1971 and in law could not be evicted. 5. Appropriate issues were framed on the above pleadings. The lower Court after trial in the judgment under appeal held Act XXIII of 1971 and the Transfer of Property Act IV of 1882 both are not applicable to the tenants. The tenants defaulted in payment of rent therefore were liable to be evicted. As to other cognate issues it was held tenants did not violate the lease terms when they felled trees. The area of the demised land was held to be 72 acres not 67 1/2 acres. Whether other tenants were in occupation and the instant tenants were divested of possession of a portion of the land under Ceiling and Agricultural Land Act the issues were held in favour of the tenants. As per Exts. M, N, O, P, Q it was held some tenants were in occupation of the land covered by Ext. 6 on that ground the defendants were not entitled to any reduction of rent. Whether the father among the two tenants was Amoktar of the Satra. It was held for more than 35 years he was the disciple of the Satra Adhikar. But as disciple it was concluded he did not abuse his position or privilege. There was an issue whether the tea cultivation was properly done. That issue was decided in favour of tenants. The termination of tenancy was held proper. The tenants thus were ordered to pay Rs. 65,820/- towards arrears of rent, Rs. 16,000/- as mesne profits for use and occupation of Jadavpur Tea Estate after termination of tenancy. The Satra was held not entitled to compensatory costs. The tenants were ordered to vacate the suit land. Hence appeal by the tenants. 6. It is seen appropriate notifications under Section 107 or 117 of the Transfer of Property Act was not made by the State Government therefore Transfer of Property Act does not apply to tenants. As to the State Act XXIII of 1971 the plaintiffs in this Court maintain the issue was correctly decided by the trial Court whereas on the part of tenants there was some vacillation. Jagneswar Bora, one of the officers of the Revenue Department concerning the land ceiling section testified at the trial as P.W. 8. His evidence is that on March 22, 1972 the excess land was determined to be 970 Bighas 2 Lachas and the excess land was taken over by the State Government on May 2, 1974, whether on the day final order was passed or the land was taken over, is not clear from the evidence of the witnesses. The issue as to reduction of rent is not pressed in the appeal. 7. The sole question argued in this appeal to determine the appeal on the equitable principle incorporated in Section 114 of the Central Act IV of 1882. The learned counsel appearing for the plaintiffs argued the land was leased to the tenants for maintenance of a Satra which constitutes a large number of disciples. The income of the Jadavpur Tea Estate is the mainstay for disciples and maintenance of Satra. The plaintiffs never waived the forfeiture. The tenants are chronic defaulters, therefore, are not entitled to any land at the hands of the Court to relieve them from forfeiture. 8. That brings us to the equitable principle in Section 114 of the Transfer of Property Act which is sought to be availed by the tenant. Before the enforcement of Act IV of 1882 in India equitable rules in England were enforced by Courts as principles of justice, equity and good conscience. Many principles evolved in United Kingdom were incorporated in the Statute of 1882. Where the Act is not applicable those priciples are still applied by the Courts to this date all over India. Section 114 of Transfer of Property Act speaks of one such principle. The question argued on behalf of the tenants is to relieve the tenants from forfeiture as they have paid all arrears interest at 6% and are willing to costs incurred by the plaintiffs in this appeal. 9. There was a controversy whether power of the Courts founded on the equitable principle (incorporated in Section 114) touched jurisdiction of Courts or whether such power indicated discretion of the Courts. Whether the power extended to appeal Courts is an other question which troubled Courts in India. The apex Court in AIR 1969 SC 1349, R. S. Lala Praduman Kumar v. Virendra Goyal, held the power of the Court speaks of discretion of Courts and not of jurisdiction and further held the power was available to appeal Courts including the apex Court to relieve the tenants from forfeiture (See paragraphs 8 and 9 of the decision). 10. In the State of Punjab and Haryana Transfer of Property Act is not applicable. A decision of that High Court in AIR 1972 Punj & Har 83, Guru Nanak Society v. State of Haryana sums up the power of Courts usefully in this regard. In that decision it is held where Transfer of Property Act is not applicable "though it is not necessary to insist on the compliance with the technical requirements of the Section relating to payment of costs and interest as a condition precedent" Courts may impose appropriate conditions for relieving a tenant against forfeiture. Relief against forfeiture may be granted by Courts even if no application for that purpose is not made by tenants. Relief be granted by an appellate or revisional Court though the tenants may not have prayed for in the trial Court. 11. The learned counsel for the plaintiffs argued that the tenant is a chronic defaulter in the instant case and it is suggested the tenants caused immense harm and hardship and acted to the detriment and interest of Satra. The tenants did not pay rents on the due dates for years, therefore, this Court is not to exercise power in favour of the tenants. The learned counsel for tenants urged the tenants were not defaulters though off and on in some years the rent was (not?) paid on the due dates as per the agreement. A decision of Supreme Court in AIR 1953 SC 229 Namedeo v. Narmadabai in this regard is opposite. That case points how such an issue is to be determined. The grounds enumerated in this case show the following aspects are relevant for consideration. "...., Whether the tenant should have been given relief against forfeiture the High Court held that the matter was one of discretion and both the lower Courts had exercised their discretion against the appellant and that being so, unless they were satisfied that the discretion was not judicially exercised or was exercised without proper materials they would not ordinarily interfere with it in second appeal. It was said that the non-payment in this case seems to have become chronic and that this was not a case for the exercise of equitable jurisdiction." Later it is summed up -- "For the best part of 25 years he has never paid rent without being sued in Court. Rent has been in arrears at times for six years, at other times for three years and at other times for four years and so on, and every time the landlord had to file a suit in ejectment which was always resisted on false defence. No rule of equity, justice or good conscience can be invoked in the case of a tenant of this description. He cannot always be allowed to take advantage of his own wrong and to plead relief against forfeiture on every occasion, particularly when he was warned by the Court of appeal on a previous occasion. He had already had relief three times on equitable grounds and it is time that the Court withheld its hands and ordered his ejectment. In this situation in second appeal it would not interfere with the discretion of the Courts below in refusing to grant relief against forfeiture." 12. From the above decision what are the tests to be applied is made clear. We turn to the history of payments of instant tenants. The lease agreement was entered in 1966. The rent is to be paid in February and December of every calendar year. The first instalment of Rs. 8000/- in 1966 under Ext. K-91 was paid on February 15, 1966. Balance of Rs. 8000/-was paid on November 27,1966. On February 10, 1967, Rs. 8000/- was paid. On November 20, 1967 Rs. 8000/- was paid under Ext. K(2) for 1967. On February 15, 1967 Rs. 8000/-was paid under Ext. K(3). On November 30, 1967 Rs. 8000/- was paid under Ext. K(4) for 1967. On February 15, 1968 Rs. 8000/- was paid under Ext. K(5) for 1968. On November 29, 1968 RS. 8000/- was paid under Ext. K(6). The first instalment of Rs. 11,000/- was paid for 1969. The date is not available. Rs. 6000/-was paid in 1969 again the date is not available. Rs. 1000/- was paid in excess which was adjusted in the succeeding year of 1970. The tenants tendered for 1970 Rs. 13,000/- by cheque. For 1971 Rs, 10,000/- was paid and a sum of Rs. 28,000/ - was paid by 8 post dated cheques after settlement with Satra and Adhikar. Rs. 2180/- was paid under Ext. 37 and accepted by the lessor by cheque on December 27, 1973, after the termination notices Exts. 30 and 31. The tenants tendered Rs. 1225/ - but was not received by the plaintiffs. The suit was laid on May 20, 1974 and this is the history of payment up to the suit. 13. Pending the suit following Rupees 69,000.00 was deposited on February 25, 1980 towards arrears of 1971, 1972, 1973 and 1974 which sum was withdrawn. The break up is shown on behalf of tenants is Rs. I0,000/-was paid on July 5, 1980; Rs. 10,000/- was paid on August 28, 1980; Rs. 10,000/- was paid on September 2, 1980; Rs. 20,000/- was paid on December 12, 1980 and another Rupees 30,000/- was paid on February 25, 1981 towards rent for the years 1975 to 1979. Rs. 10,000/- was paid on March 29, 1982; Rs. 2,000/- was paid on December 21, 1982 and Rs. 4,000/- was paid on January 11, 1983 towards the rent for the year 1980. Rs. 2,000/-was paid on June 1, 1988; Rs. 5,000/- was paid on August 2, 1983; Rs. 5,000/- was paid on October 3, 1983 and Rs.4,000/- was paid on November 28, 1983 towards the rent for 1981. Rs. 3,000/- was paid on February 8, 1984; Rs. 2,000/- was paid on March 8, 1984 Rs. 5,000/- paid on June 1, 1984 and Rs. 6,000/- was paid on July 13, 1984 towards rent for 1982. Rs.4,000/- was paid on November 13, 1984 and Rs. 12,000/- was paid on March 1, 1985 towards rent for 1983. Rs.2,000/- was paid on May 29, 1985; Rs.4,000/- was paid on August 2, 1985; Rs. 1,000/- was paid on December 6, 1985 and Rs. 9,000/~ was paid on April 28, 1986 for the year 1984. Rs.4,000/- was paid on August 12, 1986 and Rs. 12,000/- was paid on November 11, 1986 for 1985. Rs. 16,000/- was paid on January 20, 1987 towards rent for 1986. Rs.16,000/- was paid on May 12, 1988 towards rent for 1987 and finally Rs. 16,000/-was paid on January 20, 1989 towards rent for 1988. The interest is calculated at 6% and the amount is ascertained at Rs.6880/- plus Rs. 2300/- and a draft is deposited in this Court. The rent payable in February 1989 Rs. 3,750/- is paid on August 17, 1989. Thus arrears to the end of 1988 with interest has been deposited through a draft in this Court on the last date of the hearing. To sum up under the lease agreement rent increased to Rs. 20,000/- from 1981 earlier the rent was Rs. 16,000/-. After the lease agreement the land was found 99.18 acres in excess when it was surveyed. The tenants thereafter agreed to pay Re. 1/- is the rent per every acre. Interest at 6% per annum is properly calculated. This is the history of payments. 14. There are two cases of this Court where the equitable power arose for consideration in AIR 1956 Assam 113, Kishanlal Singol v. Hari Kisson, the question of exercise of equitable power was adverted to and on facts it was held did not warrant the exercise of such power. In AlR 1980 Gauhati 68, Phukan Chandra Bayan v. Madhav Chandra equitable power was exercised against the tenant as he did not fulfil the conditions of Section 114 of the Transfer of Property Act, 15. In this regard it was brought to the notice of the Court that Satradhikar as per general information to in newspaper informed all concerned not to purchase green leaves of the Jadavpur Tea Estate. 16. We have set out the history of payment rent paid by the tenants. We hold the tenants are not chronic defaulters though off and on in the last 25 years rents were not paid on the due dates. Following the methods adopted by the Supreme Court as indicated in the cited cases we relieve the tenants from forfeiture. The tenants however are directed to pay costs of the plaintiffs in the instant appeal fifteen days after the decree in the appeal is prepared. 17. The decree under appeal for the aforesaid reasons is set aside. The appeal is allowed as indicated above. Smt. M. Sharma, J.
18. I agree.