Baldeb Jiu Thakur and Others vs Jogi Sahu and Others

Brough, J.—This is an appeal by the deity, Baldev Jiu Thakur, and his marfatdar sebait against a decision of the Additional Subordinate Judge of Cuttack. The suit was brought to eject the defendants from three plots of land, the total extent being .044 acre. The land described in schedule Ka comprised .034 acre, in schedule Kha .006 acre and in schedule Ga .004 acre. The learned Subordinate Judge finds as a fact, and indeed it was admitted, that all this property was debottar property belonging to the deity. He also finds that the defendants or their ancestors have been in occupation of schedule Ka land since the year 1836 paying a uniform rent of Rs. 3 and that in the year 1918 they built pakka structures in place of the old ones. He also finds that at that time the pakka structures were extended to cover the schedule Kha land. It appears from the plaint that the plaintiffs in the year 1918 did make some protest about the building of a psikka structure but they took no effective action. The defendants also allege that they have erected a latrine on the schedule Kha land and have been in possession of that land for more than twelve years.

In these circumstances, the learned Subordinate Judge held that the defendants and their ancestors had been living in the schedule Ka land from a long time (in fact from 1836, as I have stated) and that the tenancy is unknown but that the; circumstances warranted a presumption of a lost grant of permanent tenancy to the defendants in respect of this land. He also held that as regards the schedule Kha land the defendants had been in possession since more than twelve years of the suit (in fact, since 1918) and had acquired a title to that land under Article 142, Limitation Act, as appertaining to their permanent tenancy of Ka schedule land, and he left it to the plaintiffs to bring a separate suit to claim additional rent for the Kha schedule land. With regard to the Ga schedule, he held that the defendants had not established that they had been in possession for more than 12 years from the date of the suit, and as to this he granted the plaintiffs an order for recovery of possession. Against this decision the plaintiffs have appealed. The defendants have also filed a cross-objection with regard to the sche dule Ga land and as to that part of the order of the learned Judge, leaving it open to the plaintiffs to bring a separate suit to fix the rent of the Kha schedule lands.

As to the cross-objection, with regard to the Ga schedule lands, I need say nothing except that the matter is concluded by the finding of fact of the learned Subordinate Judge, which it is not open to me to question in a second appeal. The main question is the question as to whether the defendants had a permanent tenancy to the schedule Ka land. It is admitted that under suitable conditions a person who has been in occupation of land g for a very long time at a fixed rent, the origin of whose tenancy is unknown, may be presumed to have a permanent tenancy. But it was strenuously argued by Mr. M.S. Rao for the appellants that such a presumption could not be made where the land was debottar land, and he relied upon a decision of the Privy Council in Nainapillai Marakayar v. Ramanathan Chettiar AIR 1924 P.C. 65 and a decision of the Calcutta High Court in Satya Sri Ghoshal v. Kaaartik Chandra Dass (''12) 15 C.L.J. 227 in which Jenkins C.J. in the course of his judgment said:

The presumption in favour of a permanent tenancy implies that there is ground for inferring that the tenure was always intended to be and always was hereditary, or that it acquired that character by such sequent grant. But a presumption in favour of a transaction assumes its regularity: it cannot be made in favour of that which offends legal principle. It is this that prevents our accepting the view of the lower appellate Court as final, for it would seem that the property to which the presumption has been applied is debutter.

If it was debutter at the time the tenancy originated, then this would affect the applicability of the presumption, for to create a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach of duty in a sebait and is not, therefore, presumable.

On the other hand, Mr. R.K. Ghosh for the respondents while not disputing that if a presumption of a grant of permanent tenancy is to be made there must be a possibility of a lawful origin for the tenancy, submitted that the statement of Jonkins C.J. in the Calcutta case was too wide and referred me to a case in Bawa Mangiram Sitaram v. Kasturbhai Manibhai AIR 1922 P.C. 163 which was another decision of the Privy Council. In that case the judgment of the board was delivered by Lord Buck-master. The point at issue was whether a tenancy of the debotfcar lands was a permanent tenancy or not, and after deciding as a matter of construction that the document on which the tenancy was based, intended to create a permanent tenancy, the judgment proceeded to deal with the point that being debottar lands, such a grant was impossible, and Lord Buckmaster observed that the disability of a sebait to make a permanent grant was not absolute. He had no power to make a permanent alienation of temple property in the absence of proved necessity for the alienation, and yet a long lapse of time between the alienation and the challenge of its validity was a circumstance which enabled the Court to assume that the original grant was made in exercise of that extended power, and he said that in the case before the board their Lordships had no hesitation in applying that doctrine, and he proceeded as follows:

At the lapse of 100 years, when every party to the original transaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy which the Courts always adopt, of securing, as far as possible, quiet possession to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfully made.

It is clear therefore that in suitable circumstances a presumption will be made, either that a permanent tenancy has been granted in a case where the landlord was legally entitled to grant it, or that the landlord was not debarred by law from making the grant where a permanent tenancy had been granted. The question therefore for decision whether under suitable circumstances it is permissible to make both presumptions in the same case. If that course is legally permissible, the facts, as found by the learned Subordinate Judge, would enable such presumptions to be made in this case. I can see no logical or sensible reason for saying that although under suitable circumstances either one presumption or the other may be made, yet it is not permissible under any circumstances to make both presumptions in the same case. Accordingly unless I am precluded by the authority of the'' case in Nainapillai Marakayar v. Ramanathan Chettiar AIR 1924 P.C. 65 and the case in Satya Sri Ghoshal v. Kartik Chandra Dass (1912) 15 C.L.J. 227 would hold that the decision of the learned Subordinate Judge was correct. It is a common place that a case is only authority for what it decides. It is therefore necessary to see what those two cases did decide. I have perused the judgment of Sir John Edge in Nainapillai Marakayar v. Ramanathan Chettiar AIR 1924 P.C. 65 with great care, and it appears to me that the actual decision in that case was that the tenants had failed to prove that they were granted originally or had subsequently attempted to acquire any right of permanent occupancy. It is true in the course of his judgment he referred with approval to the observations of Jenkins C.J. which I have already quoted. But their Lordships did not in fact decide the case on those grounds. That case, therefore, does not in any way detract from the authority of the earlier ease which was in fact not cited to their Lordships.

Coming to the Calcutta case, in view of the judgment of Lord Buckmaster, it is clear that if Jenkins C.J. is to be taken to have meant that no grant of permanent tenancy of debottar property can ever be made, his statement was too wide. The judgment however was one in a second appeal and is not accompanied g by any statement of facts from which it is possible to gather what point precisely the learned Chief Justice had in mind. I do not therefore find that these cases preclude me from holding with the learned Subordinate Judge that in this ease the grant of a permanent tenancy may be presumed.

With regard to the Kha schedule land, in my judgment the decision of the learned Subordinate Judge is perfectly correct. The clearest exposition of the law which I have been able to find is contained in the judgment of Mookerjee J. in Ishan Chandra Mitter v. Raja Ramranjan Chakarbutty (1905) 2 C.L.J. 125 to which my attention was called by Mr. Ghosh. In this case the learned Subordinate Judge has in fact found that the tenants had acquired a right to this land as against their landlord as an accretion to their tenancy and that finding is fully warranted by the detailed circumstances, he finds proved, namely, that the tenants had taken possession of the plot by including it in the site of the permanent house that they had built upon the land included in the tenancy. In those circumstances, for the reasons given by Mookerjee J. after 12 years'' possession the landlord is barred under Article 142 from recovering khas possession, but he is not bar-red from bringing a suit for fixing a rent and for recovery of three years'' arrears because as the possession is only in the character of a tenant it is not adverse to the landlord in the character of a landlord. Mr. Rao argued that those principles did not apply and that the case relied on by the Subordinate Judge�Raktoo Singh v. Sudhram Ahir (1908) 8 C.L.J. 557 which is to the same effect as, though less clearly expressed than, the case reported in Ishan Chandra Mitter v. Raja Ramranjan Chakarbutty (1905) 2 C.L.J. 125 related only to agricultural land. I do not think his argument is sound or that there is any point in the distinction. It is clear to me that in view of the findings of the Subordinate Judge the defendants hold this small plot of land upon the same terms as the larger plot to which it is appertained subject to the right of the landlords to have a fair rent fixed.

Accordingly in my judgment the decision of the learned Subordinate Judge will be affirmed in all respects and this appeal fails, as does the cross-objection. The appellants must pay to the respondents their costs of the appeal. As the cross-objection did not give rise to any additional costs, no separate order to the costs thereof will be made. Leave to appeal under the Letters Patent is refused.