Patna High Court
Shaikh Bande vs Jethua Pahan And Ors. on 17 September, 1974
Equivalent citations: AIR1975PAT113, AIR 1975 PATNA 113, 1975 PATLJR 118, 1975 BLJR 339, ILR (1974) 53 PAT 846
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT K.B.N. Singh, J.
1. This appeal, by Defendant No. 1, arises out of a suit for declaration of title and recovery of possession in respect of 2.28 acres of land, appertaining to Plots Nos. 577, 578, 608, 681 and 1136 of Khata No. 106, situated in Village Chainpur, District Ranchi.
2. The plaintiff's case in short is that the disputed lands were Bhumihari lands of Shital Pahan, uncle and grand-uncle of the plaintiffs. Shital Pahan had leased out the disputed lands to defendant's ancestor, Sheikh Saifu, on an annual rental of Rs. 1/4/- as a temporary tenant, and after him his heirs, the defendants, held the disputed land as tenants at will, liable to be ejected from the lands at the sweet will of the lessor. The lease in question, under the Chota Nagpur Tenancy Act could not be for more than five years, neither could occupancy right accrue to the lessee, Shaikh Saifu, or his heirs. After the death of Shital Pahan, the plaintiffs inherited the disputed lands as his heirs and successors-in-interest, and they verbally asked the defendants to vacate the suit lands, but the defendants did not pay heed to it. Thereafter the plaintiffs sent notices under Certificate of Posting as well as under Registered post, asking the defendants to give up possession of the suit lands, to which also the defendants paid no heed and thereafter the suit was filed for the aforesaid relief.
3. Defendant No. 1 (the appellant), son of Shaikh Saifu, Defendant No. 3 Shaikh Sehajuddin, Defendant No. 5 Shaikh Sahabuddin and Defendant No. 6 Shaikh Allauddin (the other heirs of Shaikh Saifu), filed separate written statements, but contested the suit jointly. The case of the appellant, which in substance is also the case of the other defendants, is that they denied that their ancestor, Shaikh Saifu, had taken the lands on any lease from Shital Pahan on annual rental. His case, on the other hand, is that Shaikh Shifu purchased the disputed lands 40 years prior to the filing of the written statement in 1963 for a consideration of Rs. 100/- and he had ever since been in possession. Shaikh Saifu remained in possesion of the disputed lands for more than 12 years, without payment of rent and acquired indefeasible title by adverse possession and remained in possession till his death about 15 years prior to the filing of the written statement. After his death, the defendants came in possession of the disputed lands and have all along been in possession of the same. There was no relationship of landlord and tenant between the parties and the suit was barred by limitation and adverse possession. The appellant, in the alternative, also pleaded that even if assuming, but not admitting, that Shaikh Saifu entered into possession of the suit lands under a void lease, then he was a trespasser from the very beginning and was in possession of the suit lands without payment of rent, under a notorious claim of title and has acquired title by adverse possession as occupancy Raiyat of the disputed lands. The service of notice by the plaintiffs for vacating the suit lands is also denied. The jurisdiction of the Civil Court to entertain the suit was also challenged.
4. The trial court found that the disputed land was leased out by Shital Pahan to Shaikh Saifu for cultivation on annual rental of Rs. 1/4/- and not that Shaikh Saifu had purchased the lands from Shital Pahan. Not only Shaikh Saifu, but the appellant also paid rent and that the defendants are tenants in respect of the disputed lands under the plaintiffs and paid rent till the year 1949. The defendants are tenants from year to year or tenants-at-will under the plaintiffs. The defendants did not acquire permanent tenancy by virtue of adverse possession and failure to pay rent from 1949 till the institution of the suit in 1962 would not create any title. The defendants denied title of the plaintiffs sometime in the years 1953 to 1955 and the suit having been instituted in 1962, being within twelve years, was not barred by limitation. The plaintiffs verbally asked the defendants to vacate the lands and this was sufficient to terminate the tenancy, although no notice was necessary. On the aforesaid findings, the trial court decreed the suit
5. On appeal by Defendant No. 1 (appellant), the lower appellate court dismissed the appeal, confirmed the findings of the trial court and held that the suit being a suit for declaration of title and recovery of possession was maintainable in the Civil Court and Section 139 of the Chota Nagpur Tenancy Act was no bar to its maintainability. The appellate court also rejected the prayer of the appellant to take a Hukuninama as additional evidence. Thereafter the present second appeal has been filed by the appellant.
6. This appeal was referred to a Division Bench when it came up for hearing before a learned Single Judge of this Court. The Division Bench doubted the correctness of the Bench decision of this Court in the case of Thakur Hansda v. Raju Mian, 1961 BLJR 714, which has not followed the rule laid down in the Full Bench decision of this Court in the case of Bastacolla Colliery Company Ltd. v. Bandhu Beldar, AIR 1960 Pat 344, or that the Full Bench decision itself, in so far as it reversed the decision in the case of Maharaj Singh v. Budhu Chamar, AIR 1952 Pat 46, has not been correctly decided, and referred the case for being placed before a larger Bench and that is how this case is before us.
7. Mr. Amla Kanta Choudhuri, learned Counsel appearing on behalf of the appellant, has urged that the appellant having entered into possession of the disputed land under a void lease, could acquire the right of permanent tenancy by adverse possession and payment of rent to the plaintiffs and their ancestor would not stop the accrual of the right inasmuch as the Kurfa lease under which the defendants or the defendants' ancestor came in possession of the disputed land was for more than five years, which is prohibited under Section 46 of the Chota Nagpur Tenancy Act. The learned Counsel relied upon two Bench decisions of this Court in the cases of Jatu Das v. Sulochana Mundain, AIR 1957 Pat 37, and Thakur Hansda v. Raju Mian, 1961 BLJR 714, and submitted that payment of rent would not stand in the way of the appellant's acquiring permanent tenancy right. Learned Counsel submitted as was submitted before the lower appellate court that the plaintiffs being not in possession, within twelve years of the suit, their right to recovery was time barred. The principal question that arises for consideration in this appeal is whether the aforesaid two decisions, on which reliance has been placed on behalf of the appellant, are good law, in view of the Full Bench decision of this Court in the case of Bastacolla Colliery Co. Ltd., AIR 1960 Pat 344.
8. It has been held in the Full Bench decision in the case of Bastacolla Colliery Co. AIR 1960 Pat 344 that the possession of a lessee who comes in possession on the basis of an invalid lease becomes wrongful and he must be treated as a trespasser from the time of his entry. But, if he pays rent which is accepted by the lessor, his possession ceases to be adverse and relationship of landlord and tenant conies into existence and he no longer remains a trespasser but becomes a tenant, except in those limited classes of cases where he pays rent on the basis of a notorious claim to the permanent tenancy to the knowledge of the owner and, acceptance of rent. In such cases payment of rent will not prevent the acquisition of claim as a permanent tenant. It may be mentioned that Mr. Amla Kanta Choudhuri has not advanced any argument to show that the legal proposition, as propounded by the Full Bench has been incorrectly propounded and that it requires consideration by a larger Bench. His submission is that in the decision in Thakur Hansda's case 1961 BLJR 714 (supra) their Lordships Ramaswami, C. J. and Choudhary, J., who were party to the Full Bench decision, have rightly distinguished the Full Bench decision on the basis of the special features of the Santal Praganas Settlement Regulation, 1872 (Regulation III of 1872), which is in pan materia to Section 46 (3) of the Chota Nagpur Tenancy Act, and, therefore, the payment of rent by the appellant will not stop the accrual of adverse possession in his favour. The correctness of this contention now falls to be considered,
9. In the case of Thakur Hansda, 1961 BLJR 714 the plaintiff filed a suit for declaration of title and recovery of possession on the basis of a Kurfa settlement made in his favour by the defendants over 30 years prior to the institution of the suit. The defendants denied Kurfa settlement or possession of the plaintiff. The trial court dismissed the suit. On appeal the lower appellate court found that the settlement was void and did not create any title in view of Section 27 of the Santal Parganas Settlement Regulation 1872 (Regulation III of 1872). It, however, found that the plaintiff had established, adverse possession for twelve years and so acquired title as a tenant of the disputed land. On these findings it allowed the appeal and decreed the plaintiff's suit. Against that the defendant filed a second appeal in this Court and it was urged that in view of the findings of the lower appellate court that there was payment of rent by the plaintiff and its acceptance by the defendant, there was no question of adverse possession and the plaintiff could not acquire title of a permanent tenant on the principle of adverse possession and the Full Bench decision of this Court in the case of Bastacolla Colliery Co. AIR 1960 Pat 344 (supra) was relied upon in support of the submission. A Bench of this Court consisting of their Lordships Ramaswami, C. J. and Choudhary, J. held that the Full Bench decision was not applicable and observed as follows :--
".....In our opinion, the principle laid down by the Full Bench cannot be applied to the present case for the obvious reason that in the present case any contract or agreement of lease is prohibited by Section 27 of the Santal Parganas Settlement Regulation (Regulation 3 of 1872), which reads as follows :
'27. (1) No transfer by a raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, lease or any other contract or agreement, shall be valid unless the right to transfer has been recorded in the record-of-rights, and then only to the extent to which such right is so recorded;
Provided that a lease of raiyati land in any subdivision, for the purpose of the establishment or continuance of an excise shop thereon, may be validly granted or renewed by a raiyat, for a period not exceeding one year, with the previous written permission of the Subdivisional Officer.
(2) No transfer in contravention of Sub-section (1) shall be registered, or shall be in any way recognised as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction.
x x x x"
In the present case it is not possible to draw an inference from the conduct of the lessee and the lessor with regard to payment of rent and it is not possible to say that there was a contract or agreement for lease of the holding, because such a contract or agreement is prohibited expressly by the language of Section 27 (1) of the Santal Parganas Settlement Regulation (Regulation 3 of 1872) which is quoted above. If such an inference of a contract or agreement between the parties is not permissible in the present case, it follows that the lessee continues to be in his original position of a trespasser on account of the statutory prohibition in Section 27 of Regulation 3 of 1872. In our opinion, the present case is governed by the principle laid down by a Division Bench of this "High Court in Kala Devi v. Khelu Rai, AIR 1949 Pat 124 where it was held in similar circumstances, that the lessee had acquired the right of a permanent tenant by prescription. In that case also the Kurfa lease was invalid because of Section 27 (1) of the Santa] Parganas Settlement Regulation (Regulation 3 of 1872) and the defendants were in the position of trespassers from the beginning, but having been in possession for a period of twelve years in open assertion of permanent tenancy right had acquired that right by prescription. It was also held in that case that the circumstance that the defendants had been paying rent will be no bar to the acquisition of the right of permanent tenancy by prescription. In our opinion the principle laid down in this case governs the present case also and the title of the plaintiff must bo held to have been established by reason of adverse possession for over the statutory period of twelve years."
10. It will be relevant at this stage to refer to the Full Bench decision in the case of Bastacolla Colliery Co. AIR 1960 Pat 344 (supra). There the plaintiff's case was that the defendants took lease of land in Village Bastacolla for residential purposes in 1920, from the New Beerbhum Coal Company Limited, who were permanent lessees of Village Bastacolla, barring some culturable lands, and subsequently executed Kabuliats in the Company's favour. The plaintiff, Bastacolla Colliery Company Limited, some time thereafter acquired the rights of the said New Beerbhum Coal Company Limited in Village Bastacolla. In 1950 the plaintiff instituted two suits for eviction of the defendants on the ground that the Kabuliats executed by the defendants did not legally create any permanent lease in their favour and that their names have been wrongly recorded in the survey Khatian as Kaiyemi tenants in respect of the lands in the suits. The defence of the defendants was that they took oral settlement of the lands for agricultural purposes and subsequently executed Kabuliats in favour of the lessors and claimed permanent tenancy right by adverse possession. They also alleged that they had made permanent structures on the lands in suit to the knowledge and with the consent of the plaintiff and their predecessor-in-interest, and have all along been paying rent for the lands in dispute. The trial court decreed the suits. But the lower appellate court dismissed the same and found that there was no oral settlement in favour of the defendants 40 years ago, as alleged by them and the Kabuliats executed by them in 1920 created permanent and valid lease in their favour, even when no Patta was executed. It also found that even if the Kabuliats did not create valid leases, the evidence on the record and the circumstances show that the tenancies were permanent and heritable, and, even if that was not so, the defendants had acquired "limited rights by virtue of adverse possession for the statutory period." It, however, did not indicate the nature of the limited right, which, according to it, was acquired by the defendants by adverse possession. It may be pertinent to mention here that the Chota Nagpur Tenancy Act is applicable in the District of Dhanbad, to which the suit lands appertained. Against this, a second appeal was filed, which was ultimately heard by the Full Bench.
11. Before the Full Bench it was agreed to by the learned Counsel for the parties that the Kabuliats in question did not create a valid lease in absence of patta. One of the main contentions raised on behalf of the appellant before the Full Bench was that if a person enters into possession of a land under an invalid lease, and if he pays rent and the lessor accepts it, the relationship of landlord and tenant comes into existence and the lessee's possession cannot be held to be adverse to the lessor, and, consequently, the lessee cannot prescribe even for a limited right, and the nature and duration of such a tenancy must be determined by reference to Section 106 of the T. P. Act, in any case to which that Act applies, Sahai, J., who delivered the judgment of the Bench and with whom Ramaswami, C. J. and Choudhary, J. agreed, after considering various decisions of the Privy Council, the Supreme Court as also of other High Court and this court, held as follows :--
"(11) In so far as the second point raised by Mr. De is concerned, two principles which are well-settled are (1) that the possession of a lessee, who enters into possession on the basis of an invalid lease, becomes wrongful, and he must be treated to be a trespasser from the time of his entry; and (2) that possession of a limited interest may be just as much adverse for the purpose of barring a suit relating to that interest as the possession of a complete interest may be adverse for the purpose of barring a suit for recovery of the property, or in other words, a person in possession of land may prescribe for a limited interest like that of permanent tenancy.
X X X X (12) The possession of a lessee becomes wrongful from the time of his entry on the basis of a void or invalid lease,; but, if he pays rent, which is accepted by the lessor, his possession ceases to be adverse to the lessor, and a relationship of landlord and tenant comes into existence. In other words, he no longer remains a trespasser but be comes a tenant. The question then arises what the duration of his tenancy would be.
X X X X (15) There are, however, some cases in which a lessee can acquire the right of a permanent tenant by prescription in spite of payment and acceptance of rent. Those are cases where the lessee pays rent on the basis of a notorious claim of permanent tenancy to the knowledge of the owner. The acceptance of rent by the owner on the basis of the lessee's claim as a permanent tenant will not prevent the acquisition of such a right by the lessee. If the lessee tenders the rent on the basis of permanent tenancy and the owner refuses to accept it on that basis, the parties are at arm's length, and no relationship of landlord and tenant can come into existence between them. Hence, the lessee's possession is adverse to the lessor, and he may acquire a limited right of permanent tenancy by being in adverse possession for the statutory period."
12. With great respect to their Lordships, who decided Thakur Hansda's case AIR 1961 BLJR 714 the Full Bench decision in the case of Bastacolla Colliery Co. AIR 1960 Pat 344 (supra) is not distinguishable on account of the special features of Section 27 of the Santal Parganas Settlement Regulation, 1872 (Regulation III of 1872), prohibiting any contract or agreement or lease. It may be mentioned that the provisions of Section 46 (1) and (3) of the Chota Nagpur Tenancy Act are similar to Section 27 (1) and (2) of the Santal Praganas Settlement Regulation, 1872, with this difference that lease or mortgage for 5 years is permissible under the former. The relevant portion of Section 46 of the Chota Nagpur Tenancy Act, as it existed at the time of the defendants' Settlement, as also at the time of the leases in question in the cases of Thakur Hansda 1961 BLJR 714 and Maharaj Singh AIR 1952 Pat 46 with which we are concerned, may usefully be reproduced :--
"46. (1) No transfer by a Raiyat of his right in his holding or any portion thereof--
(a) by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed, five years, or,
(b) by sale, gift or any other contract or agreement, shall be valid to any extent :
Provided that a raiyat may enter into a Bhugut Bandha mortgage of his holding or any portion thereof for any period not exceeding seven years.
(2) No transfer by a raiyat of his right in his holding or any portion thereof shall be binding on the landlord, unless it is made with his consent in writing.
(3) No transfer in contravention of Sub-section (1) shall be registered, or shall be in any way recognised as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction.
X X X X"
It may be mentioned that by Bihar Act XXV of 1947 the original Section 46 has since been amended and certain provisos have been added, which are not relevant for our consideration. I may add that some provisions of the Santal Parganas Settlement Regulation, 1872, are also somewhat different in other respects. The Deputy Commissioner has been given wide power to evict a transferee in contravention of Sub-section (1) of Section 27. Sub-section (3) of Section 27 of the Regulation lays down that if at any time it comes to the notice of the Deputy Commissioner that a transfer in contravention of Sub-section (1) of that section has taken place, he may in his discretion evict the transferee and either restore the transferred land to the raiyat or re-settle the land with another raiyat according to the village custom for disposal of an abandoned holding. Proviso (a) to this sub-section, however, lays down "that the transferee whom it is proposed to evict has not been in continuous cultivating possession for twelve years." In other words, a transferee who has been in continuous cultivating possession for twelve years could not be evicted. An exception, therefore, has been made in case of tenants who have been in cultivating possession for twelve years, and, the right of acquisition of title by adverse possession for twelve years in case of such transferees was specifically recognised and they were not made liable for eviction under the Regulation. It may be mentioned that Section 27 of Regulation III of 1872 has been deleted by the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949, and accrual of adverse possession in Raiyati and some other kinds of lands, mentioned in Section 69 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 has been barred, as held in a Full Bench decision of this Court in the case of Bhauri Lal Jain v. The Sub-Divisional Officer of Jamtara, 1972 BLJR 897 = (AIR 1973 Pat 1). Be that as it may, the provisions of Section 46 (1) of the Chota Nagpur Tenancy Act, with which we are concerned in the instant case, came in for consideration in the case of Maharaj Singh AIR 1952 Pat 47. It was held in that case that payment of rent, where the tenancy was invalid since inception because of Section 46 (3) of the Chota Nagpur Tenancy Act, would not arrest accrual of adverse possession, if the lessee has been paying rent in assertion of permanent tenancy right and the owner's right to possession will be barred. In other words, the view taken in Maharaj Singh's case was similar to that taken by the Division Bench in Thakur Hansda's case on interpretation of Section 27 (3) of Regulation III of 1872. Maharaj Singh's case came in for consideration by the Full Bench and has been overruled on this question. Relevant portion of the decision of the Full Bench in this regard may usefully be quoted :--
"(33) Mr. Chatterji has relied upon Maha-raj Singh v. Budha Chamar, ILR 30 Pat 964 = (AIR 1952 Pat 46). In that case, the defendants* predecessor came into possession of the disputed land under an invalid lease, and, therefore, his possession was that of a trespasser from the very beginning. They remained in possession for over twenty years before the suit was instituted for recovery of possession. They admitted in the written statement that they had always been paying rent to the plaintiffs for the suit land; but they asserted that they had been in possession of that land as permanent tenants.
It was argued that the defendants* possession was not adverse because they admittedly paid rent to the plaintiffs; but their Lordships did not accept that argument. They proceeded upon the basis that the admission had to be read as a whole, and, as the defendants stated in the written statement that they were in possession as permanent tenants, that had also to be accepted along with the admission of payment of rent. With great respect, I am unable to agree. The admitted fact of payment and acceptance of rent brought a relationship of landlord and tenant into existence between the parties.
That being so, limitation could not run against the landlord, as the tenants' possession was not adverse. The defendants' allegation that they were in possession as permanent tenants availed them nothing because, in order to succeed, they had to allege and prove as a fact that they had been notoriously claiming to be permanent tenants and that the landlords, being aware of their claim, did not accept the rent or accepted it on that basis. I have, therefore, reluctantly come to the conclusion that, in so far as this point is concerned, this case has been wrongly decided and must be overruled."
It is, therefore, manifest that the decision in the case of Thakur Hansda, a case relating to Chota Nagpur Tenancy Act, is contrary to the decision of the Full Bench and could not be distinguished with reference to a case decided in relation to Regulation III of 1872, whose provisions are different. For the same reason the decision in the case of Jatu Das v. Sulochana Mundain, (AIR 1957 Pat 37), relied upon by Mr. Amla Kanta Choudhuri, cannot be said to be good law, being contrary to the Full Bench decision on the point. It may be mentioned that in this decision also the decision in the case of Maharaj Singh (supra) was relied upon.
One aspect of the matter need be emphasised and that is this that there is hardly any distinction between a tenant coming in possession under a void lease on ground of infirmity in the document not having been registered, etc., and a tenant coming in possession in contravention of law. The effect is the same, i.e., the tenant's possession is that of a trespasser from the very beginning. It is difficult to conceive that in the former case the payment of rent will arrest the accrual of adverse possession, while in the latter case it will not. This will mean unfair advantage to a tenant coming in possession in contravention of a statute, which is directly prohibited by the statute, and will amount to circumventing the statute.
13. The Full Bench decision came up for consideration in two cases before the Supreme Court. It may be recalled that in paragraph (15) of the judgment, Sahai, J., has observed that in some cases a lessee can acquire the right of a permanent tenant by prescription in spite of payment of rent and its acceptance by the lessor. Those are cases where the lessee pays rent on the basis of a notorious claim of permanent tenancy to the knowledge of the owner. The acceptance of rent by the owner in such cases will not pre-vent the acquisition of right by adverse possession. The correctness of this exception to the general rule laid down by the Full Bench has been doubted by the Supreme Court in Civil Appeal No. 598 of 1963 -- Patna Municipal Corporation v. Ram Das disposed of on the 11th August, 1965, where the principle laid down in the case of A. S. N. Nainapillai Markayar v. T. A. R. A. R. Ramanathan Chettiyar, AIR 1924 PC 65 that "No tenant of lands in India can obtain any right to permanent tenancy by prescription in them against his landlord from whom he holds the lands", has been referred to with approval. Their Lordships of the Supreme Court did not go into the correctness of the exception to the general rule laid down by the Full Bench, as it was neither urged nor proved that the tenant paid rent on the basis of a notorious claim of permanent tenancy to the knowledge of the landlord. It must be made clear here and now that in the instant case, we are also not concerned with the correctness or otherwise of the exception laid down by the Full Bench, inasmuch as the instant case is also a case where the defendant has neither alleged nor proved that the rent was paid on the basis of a notorious claim of permanent tenancy to the knowledge of the plaintiffs. On the other hand, the case made out was one of out-right sale and in any event of non-payment at any point of time, which has not been accepted by the courts below, as already mentioned. In the other case, Atyam Veerraju v. Pechetti Venkanna, AIR 1966 SC 629 the Supreme Court held as follows :--
"It is also well settled that during the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord's title by mere assertion of such a right to the knowledge of the landlord."
Then Lordships also referred to their earlier unreported decision in C. A. No. 598 of 1963, D/- 11-8-1965 (SC) (supra) doubting the cor rectness of the exception to the general rule laid down by the Full Bench and observed as follows :--
"As we did not hear any argument on that point, we do not also decide whether passage lays down the correct law. This passage must be read with the following observation of the Patna High Court in the same case :
'If once a tenancy of some kind comes into existence either under an express lease or under a lease implied by law, the tenant cannot convert his tenancy into a permanent one by doing any act adverse to the landlord,' It may, however, be mentioned that the ratio decidendi of these two Supreme Court decisions lend support to the general principle relating to landlord and tenant as laid down in the Full Bench decision.
14. There is another aspect of the matter which also may be considered. In the instant case, the courts below have found that the appellant and his ancestor were tenants under the plaintiffs and no case was made out on behalf of the appellant that Shaikh Saifu was prescribing as a permanent tenant under Shital Pahan or the plaintiffs. No such customary right under Section 76 of C. N. T. Act was pleaded or proved. Therefore, there was no question of acquisition of any permanent tenancy right under the plaintiffs. As found by the court below, rent was paid up to 1949. It was between 1953 and 1955 that for the first time the defendants disclaimed the title of the plaintiffs, which is less than twelve years before the institution of the suit. Therefore, in the instant case, there was no question of acquisition of title by adverse possession as an occupancy raiyat of the disputed lands, even if a plea of adverse possession was available to the appellant.
15. Mr. Amla Kanta Choudhuri has urged that the suit for recovery of possession by the plaintiffs is barred by limitation, inasmuch as the plaintiffs were not in possession of the suit lands within twelve years of the smt. The appellant has been found paying rent up to the year 1949 and was thus obviously in possession on behalf of the plaintiffs. It was between 1953 and 1955 that the appellant for the first time set up hostile title. The suit, therefore, filed in 1962 could not be held to be barred by limitation.
16. Mr. Amla Kanta Choudhuri has lastly urged that there was no written notice terminating the tenancy, and, therefore, the plaintiffs' suit for eviction was not maintainable. The trial court found that there was verbal notice terminating the tenancy and also that no notice was necessary. This question does not seem to have been agitated before the final court of fact. The lower appellate court has found that the appellant disowned the title of the plaintiffs and his position was no better than a tenant-at-will, and a tenancy-at-will can be terminated merely by demand for possession either expressly or by implication, as held by his Lordship Untwalia, J. (as he then was) in the case of Jhalku Singh v. Chandrika Singh, AIR 1961 Pat 350, which, as found by the trial court, has been made. The tenancy being for agricultural purposes, as found by the courts below, the provision as to written notice terminating the tenancy envisaged in Section 106 or Section 111 (g) of the Transfer of Property Act is not applicable in view of Section 117 of the said Act, nor its principle can be applied on grounds of equity (vide Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228). Even an oral demand or filing of suit is enough in such a case to terminate the tenancy. In the instant case, the appellant also denied the title of the plaintiffs prior to the institution of the suit. That by itself is sufficient to entail termination of the tenancy by forfeiture. Thus, there is no substance in this submission of Mr. Choudhuri as well.
17. In the result, there is no merit in this appeal and it is dismissed. But, in the circumstances of the case, I would make no order as to costs.
Untwalia, C.J.
I agree.
S.K. Jha, J.
I agree.