Adhir Kumar Hajra vs Kanai Lal Chatterjee

Renupada Mukherjee, J.—The only question of importance which has been raised in this appeal and which is a question of law is what would he the status of an- under-lessee from a raiyat whose holding was governed by the Bengal Tenancy Act and who granted a non-agricultural sub-lease of a portion of his holding to the under-lessee when the Bengal Tenancy Act was in full operation before its almost whole-sale repeal by the Land Reforms Act of 1955. Incidental to this question and also as an integral part of it, a further question has arisen, namely, what would be the determining factor in such a case-the nature of the original tenancy or the character of the parcel or parcels included in the sub-tenancy for deciding whether the sublease would be governed by the Bengal Tenancy Act or the Transfer of Property Act.

In order to appreciate how this controversial question of law has arisen it is necessary to state the following facts about; which there is no dispute. One Gostha Behari Hajra, the original Plaintiff, who died during the pendency of the appeal in this Court and who has been substituted by his heirs, the present Appellants, granted a lease of the disputed land measuring- six cottas to Respondent Kanai Lal Chatterjee who was Defendant in the Trial Court. The lease was granted on Jaistha 9, 1346 B.S., reserving an annual rent of Rs. 12. The land is situate in Mouja Bil Jaipur and admittedly Gostha Behari had the interest of a raiyat in this land which was portion of a bigger raiyati holding. The lease was given for a term of nine years which was. due to expire with the end of Baisakh, 1355 B.S. the corresponding English date being May 14, 1948. There was a clause for renewal of the lease for a similar term if the lessee so desired. The lessee did not give up possession of the demised land on the expiry of the original term of the lease. On the basis of the above admitted facts, Gostha Behari instituted the present suit for ejectment against the Defendant on November 16, 1948, contending that the Defendant was not entitled to possess the land, because the term of the. lease had expired and the option for renewal had not been exercised by him.

The defence was that the Defendant was an under-raiyat, and the suit having been brought more than six months after the expiry of the term of the lease was barred by limitation under Article 1(a) of Schedule III of the Bengal Tenancy Act. It was further contended oh behalf of the Defendant that he had duly exercised the option for renewal of the lease and so the claim of the Plaintiff for ejectment was premature.

The courts below have concurrently held that the status of the Defendant was that of an under-raiyat and he duly exercised the option for renewal of the lease and so he was not liable to eviction in view of these findings, the Trial Court dismissed the suit, and the decree of dismissal was affirmed by the Lower Appellate Court. So this second appeal was preferred by the original Plaintiff. As has already been said, he died during the pendency of this second appeal and his heirs were substituted in his place.

Mr. Biswas appearing on behalf of the substituted Appellants submitted that there, was a sharp difference of opinion in the decisions of this Court on the question as to what would be the status of a subordinate tenant who took a non-agricultural lease of a portion of a raiyati holding from a raiyat and whether the status of the raiyat or the purpose for which the subordinate tenancy was created would determine the status of the under-lessee. Mr. Biswas, therefore, urged for a reference of this matter to a Full Bench of this Court for setting at rest this conflict of opinion. We shall presently examine whether there is really such a conflict of decision in this Court as would justify a reference of the matter to a Full Bench.

There can be no doubt that the question now raised is expressly covered by a good many decisions of this Court, the earliest of which seems to be of the year 1904, and which has been reported in Babu Ram Roy v. Mahendra Nath Samanta (1904) 8 C.W.N. 454. It was held in that case which was a Letters Patent Appeal from the decision of Sarada Charan Mitra J. that where the lands included in the holding of an agricultural raiyat consisted partly of agricultural and partly 5f homestead lands and the portion which could be used as homestead was let out for use as homestead, the under-tenant was an under-raiyat within the meaning of the Bengal Tenancy Act and the Transfer of Property Act had no application. This decision was consistently followed in a series of cases of this Court which need not be enumerated here, because they have been mentioned in the case of Arun Kumar Singh v. Durga Charan Basu (1941) 45 C.W.N. 805. This last mentioned case may fairly be taken to be a leading case on the point of comparatively recent times, and the judgment was delivered in 1941 by a Judge of no less eminence than Bijan Kumar Mukherjea J. He followed Baburam''s (supra) with some reluctance and hesitation no doubt, but he pointed out that the decision in Baburam''s case (supra) was supportable by the wide definition of the "under-raiyat" in Section 4, Clause (3) of the Bengal Tenancy Act as a tenant holding immediately or mediately under a raiyat. The definition does not refer to the agricultural or non-agricultural character of an under-raiyati holding and may include either of them or both. Mukherjea J. further pointed out that the word ''''under-raiyat'''' had been interpreted in that way for "a period of nearly forty years without any dissension whatever, and he would not be justified in upsetting the long series of decisions. There can, therefore, be no manner of doubt that uptil the decision of the last mentioned case of Arun Kumar v. Durga Charan (supra), the consistent view of this Court was that if a raiyat Let out a portion of his holding to a sub-tenant for non-agricultural purpose, the status of the sub-tenant would be that of an under-raiyat being governed by the nature and character of the original tenancy, and not by the purpose for which the sub-tenancy was created.

Mr. Biswas contended on behalf of the Appellants that there are at least two decisions of this High Court which have struck a note of dissent from the above view and have held that a sub-lease of the above description would be governed not by the nature or character of the original or parent tenancy, but by the purpose for which the sub-lease was created. We shall now examine these two cases and see whether they really run counter to the cases of Baburam v. Mahendra (supra) and Arun Kumar v. Durga Charan (supra).

The first of the abovementioned two cases is reported in Munshi Alauddin Ahmed Choudhury v. Tomizuddin Ahammed (1937) 41 C.W.N. 1001. This case was decided in 1937, and it has been noticed by Mukherjee, J. in case of Arun Kumar v. Durgacharan (supra). It was a case of letting of agricultural lands for non-agricultural purposes, namely, the collection of rent, and it was held that the purpose of the lease and not the mere agricultural character of the land would govern the character of the lease. The following quotation from p. 1004 of the report will show what was the real point for decision in that case:

Where, as here, the letting is merely for collection of rents, and there is no question of the lessee being required or expected to bring any land under cultivation either himself or by members of his family or by servants or labourers, or by establishing tenants on the land, the mere fact that the land is agricultural or that there are cultivating tenants on it, would not make the lease one for an agricultural purpose.

The question which was, therefore, raised in the case of Munshi Alauddin (supra) was simply whether an agricultural land could be made the subject matter of a non-agricultural lease governed by the Transfer of Property Act. It was completely different from the question raised in Baburam''s case (supra), namely, what would be the status of a non-agricultural sub-lessee from an agricultural raiyat. There is, therefore, no point of contact between the two cases, and it is significant that Baburam''s case (supra) was not mentioned in the case reported in Munshi Alauddin Ahmad Choudhury v. Tomizuddin Ahamrrtad (supra). We therefore, hold that Baburam''s case (supra) has not been dissented from in the case mentioned above.

The other case cited by Mr. Biswas in support of his argument has been reported in Sk. Abdul Hossain v. The Shalimar Paint Colour and Varnish Co. Ltd. (1945) 81 C.L.J. 138. In this case the Plaintiff company having purchased some parcels of land from some occupancy raiyati tenants acquired a mokurari mourashi lease of the same land from the superior landlord. Thereafter the Defendant was given permission to enjoy some of these lands in consideration of payment of money for the purpose of cultivating paddy. It was held that the Defendant sub-tenant was a non-occupancy raiyat under the Plaintiff company which was a tenure-holder. This case does not militate against the principle laid down in Baburam''s case (supra) because the Plaintiff company having been found to be a tenure-holder, the Defendant who had taken a sublease under it for agricultural purposes must necessarily be held to be a raiyat. In fact, it was pointed out by Mitter J. who delivered the judgment at p. 143 of the report that the case before the learned Judges was not of the same type as Baburam''s case (supra).

Baburam''s case (supra) appears to have evoked unfavourable criticism not only in the case reported in Shaikh Abdul Hossain v. The Shalimar Paint Colour and Varnish Co. Ltd., (supra), but also in the case reported in Arun Kumar v. Durga Charan, (supra) and in some other cases too, e.g., in the case reported in Sheikh Abdul Samad v. Jitoo Choudhury (1949) 54 C.W.N. 159 because of the following observation which is somewhat sweeping in its nature:

The Transfer of Property Act is not applicable to lands used for agricultural purposes, and in considering whether the one Act or the other would apply, we have to look to the nature of the original tenancy, and not the nature of the tenancy with reference to a particular piece of land within the landlord''s holding.

The soundness of this observation, taken as a general proposition of law, has been questioned and for very cogent reasons too. A Judge would perhaps be disinclined to extend this principle to a case where a tenure-holder whose status is governed by the Bengal Tenancy Act grants a subordinate settlement of a portion of his lands for purely non-agricultural purposes, because such a lessee would not conform to the definition of a raiyat as defined in the Bengal Tenancy Act. But within the narrow limits of a case between a raiyat and his undev-raiyat, the authority of Baburam''s case (supra) still holds good and it has not been shaken by any subsequent decision to the contrary. There is, therefore, no necessity for referring this case to a Full Bench of this Court.

Following Baburam''s case (supra) we hold that the status of the Defendant Respondent is that of an under-raiyat, because the status of his lessor who was the predecessor-in-interest of the substituted Appellants was unquestionably that of a raiyat governed by the Bengal Tenancy Act.

The above finding would be sufficient for the purpose of disposal of this appeal. The courts below have found the Respondent exercised the option of renewal provided in the lease. This is a concurrent finding of fact based upon evidence, though somewhat meagre, and we are not prepared to disturb that finding in second appeal. As the suit was instituted before the renewed term of the lessee had expired it was premature and the suit is liable to be dismissed on that ground alone. The suit is liable to dismissal on the ground of limitation, even if it be held that the option of renewal was not properly exercised by the Respondent, because the suit was instituted more than six months after the expiry of the original term, and is, therefore, hit by Article 1(a) of Schedule III of the Bengal Tenancy Act.

In. view of the above findings, we dismiss this appeal, but having regard to the circumstances of the case, we direct that parties will bear their own costs in this Court.

Banerjee, J.

I agree.