Banshidhar Jash vs Maharaj Shri Somesh Chandra Nandy

P.N. Mookerjee, J.—This appeal arises out of a suit for declaration of title and recovery of possession. In the plaint, there was also a prayer for mesne profits, but, during the pendency of the proceedings in the trial court, the said prayer was withdrawn. The Plaintiff, who claims recovery of possession, is the zemindar or proprietor in respect of the disputed land. Under the Plaintiff, according to the plaint, there were certain service tenants or service-tenure holders Krishnahari Josh and others. Against these service tenure holders, the Plaintiff brought a suit, in the year 1939, for resumption of their service-tenure and the suit was decreed up to this Court. According to the Plaintiff, he, thereafter, took khas possession of the disputed property through court and, subsequent to the taking of such possession, the suit land was let out in Bhag to the present Defendant No. 2 for the year 1354 B.S. and after the expiry of the said year, the said land was settled with one Rajnarayan Hazra. When, however, the above settlement holder Rajnarayan went to take possession, he was resisted by the present Defendants, namely, Defendants Nos. 1 and 2, in collusion, as alleged by the Plaintiff, with the ex-service tenants. Consequently, the present suit had to be brought on August 3, 1949. In the plaint, it was stated further that the father of present Defendant No. 2, Nemai Karak, was recorded in respect of the disputed land as ''occupant'' under the service-tenants Krishnahari Josh and others. The said Nemai Karak wasm not impleaded in the above resumption suit. Defendant No. 2 was claiming to be a transferee in respect of a part of the suit land, comprising 54 decimals from Defendant No. 2. According to the Plaintiff, neither Defendant No. 1 nor Defendant No. 2 had any valid right in respect of the suit land, not, in any event, against the Plaintiff, and, accordingly, the Plaintiff was claiming recovery of possession of the same after declaration of his title thereto.

The suit was contested by both the Defendants and their defence, in substance, was a denial of the Plaintiff''s story of delivery of possession, as made in the plaint, and also his story of Bhag settlement to Defendant No. 2. The Defendants claim to be occupancy raiyats in respect of the disputed land and, on this point, their case was of a two-fold character. They first asserted that the suit land was no part of the Plaintiff''s Mal assets or the Mal assets the Plaintiff''s zemindary and did not appertain to any service tenure under him but that the superior interest therein belonged to certain Nishkardars, Balika Sundari and others, under whom they (the Defendants) were the tenants thereof and they (the Defendants) had occupancy rights therein. In the second place, they asserted that, even though the suit land might be within the Plaintiff''s Mal assets and within the service-tenure of Krislmahari Josh and others under the Plaintiff, the Defendants or the father of Defendant No. 2, Nemai Karak, had been holding the disputed land under the said service-tenure holders under a settlement and had been actually cultivating the same for long over 12 years and had thereby acquired occupancy rights therein, with the result that both Defendant No. 1 and Defendant No. 2 were occupancy raiyats in respect of the disputed land. They accordingly, contended that the Plaintiff was not entitled to get khas possession of the disputed land even if he might be held entitled to a declaration of title, that is title in the superior interest in respect of the same.

The suit was decreed by both the courts below, overruling in substance, or materially speaking all the defences, raised by the Defendants. The courts below found concurrently that Balika Sundari the alleged landlord of the Defendants in respect of the disputed land, had not been proved to have had, at any time, any interest in the said land. They further found that the suit land was compromised in C.S. khatian No. 783 as alleged in the plaint, under C.S. khatian No. 782 which was the khatian of the service-tenure holders Krislmahari Josh and others under the Plaintiff. There was no dispute also that in the year 1939, a suit was brought against the said service-tenure holders and a decree was obtained for resumption or recovery of khas possession of the suit land against them by the Plaintiff up to this Court. The trial court further accepted the Plaintiff''s case that he had obtained delivery of actual khas possession in execution of the aforesaid decree and that, thereafter he settled the disputed land, with Defendant No. 2 in Bhag for the year 1354 B.S. and that the said Bhag settlement terminated with the expiry of the said year. Although this finding does not appear to have been accepted by the lower appellate court, the learned Subordinate Judge also found in favour of the Plaintiff and against the Defendants on the question of the Defendants'' claim of occupancy right in respect of the disputed land. On this part of the case, the reasoning of the two courts below was that, in view of Section 181 of the Bengal Tenancy Act, the Defendants, holding or, claiming to hold, under service tenure holders, could not claim any occupancy right as against the zemindar or proprietor or the superior interest holder, whatever claim they might urge or successfully urge against the service-tenure holders themselves who were their (immediate) landlords.

Before the lower appellate court, reliance was placed on behalf of the contesting Defendants, who were the Appellants there, on the well known decision of the Privy Council in the case of (1933) L.R. 61 I.A. 93 (Privy Council) , and it was contended, on their behalf, that that decision was a clear authority in favour of the tenants under service-tenants as to their being entitled to acquire occupancy rights in respect of the lands, settled with them. The learned Subordinate Judge explained the above decision of the Privy Council by pointing out that that was a case between the service tenants and the tenants under them and the claim of occupancy right was made by the said under tenants against the service tenants themselves, who were their immediate landlords, and the privy council merely held that there was nothing either in Section 181 of the Bengal Tenancy Act or in any other provision of law, which would disentitle the under-tenants from claiming occupancy right against the service tenants, their (immediate) landlords. The learned Subordinate Judge, however, was of the opinion that that decision cannot be cited here against the superior landlord or the proprietor who was no party to the settlement between the service-tenants and their so-called tenant (who was the actual claimant of occupancy right) and who, as landlord or proprietor as aforesaid had a right of resumption of the service tenure itself. In this view and that was substantially the view also of the learned Munsif by whom the defence of occupancy right was overruled and the Plaintiff''s suit was decreed. From this concurrent decision, decreeing the Plaintiff''s suit, the present appeal has been filed by the Defendants.

On behalf of the Appellants in this Court, two points were, urged by Mr. Ganguly who appeared in support of this appeal. In the first place Mr. Ganguly contended that the courts below were wrong in over-ruling the defence of occupancy right upon a mistaken view of the Privy Council decision (L.R. 61 IndAp 93 supra) relied upon by the Defendants for the purpose. Mr. Ganguly contended that there was nothing in Section 181 of the Bengal Tenancy Act, in the light of the said Privy Council decision and as explained therein, to debar the occupants (under-tenants) from urging their claim of occupancy right against either the service-tenants themselves or against the superior landlord, namely, the proprietor or the zemindar. In the second place, Mr. Ganguly contended, and this was really a new point urged for the first time in this Court-that, in any event, the Plaintiff''s suit must be held to be barred u/s 47 of the CPC in view of the resumption decree, admittedly obtained by them against the service tenants and as the suit was brought much more than three years from the date of the said decree or from the last execution thereof, Sub-section (3) of Section 47 also would not be of any assistance to the Plaintiff and the present suit cannot be converted into an application u/s 47 under the said provision to enable the Plaintiff to get his relief in the said application even though the suit be not maintainable in law. In this view, Mr. Ganguly contended that the Plaintiff''s suit should fall on account of the bar of Section 47 of the Code of Civil Procedure.

The two questions which have been raised on behalf of the Appellants were contested on behalf of the Respondent by Mr. Bagchi who appeared to oppose this appeal. The questions are not certainly altogether free from difficulty but in our view, having regard to the trend of decisions and the principles of law and the actual facts of this case, the answers must go against the Appellants.

We will take up first the shorter question of Section 47 of the Code of Civil Procedure. The learned munsif as we have already indicated above, actually found that the Plaintiff, in execution of the resumption decree in the 1939 suit, obtained delivery of actual possession and then let out the suit land to Defendant No. 2 in Bhag in and for the year 1354 B.S. If that finding be a good finding, no question of Section 47 of the Code would arise, as it would, then obviously be a case of subsequent dispossession and the Plaintiff''s only remedy would be a suit. A difficulty however, was created by the finding, or rather, the view of the learned Subordinate Judge, as expressed in his judgment that on the question of taking of khas possession and bhag settlement the Plaintiff''s evidence was not satisfactory and he purported to disagree with the learned munsif on the latter''s finding on this point. It seems to us, however, upon an examination of the records, that the learned Subordinate Judge, in holding as above, was actually labouring under a misapprehension. There was clear evidence on the side of the Plaintiff, oral though it is, of the granting of bhag settlement to Defendant No. 2. There was also, on the record, relevant documentary evidence, including the writ of delivery of possession and the receipt showing such delivery of possession, indicating sufficiently that the Plaintiff actually got khas possession in execution of the resumption decree. This documentary evidence does not appear to have been considered at all by the learned Subordinate Judge. The oral evidence of Bhag settlement also was not adverted to by him. He referred only to a receipt, Ext. 5(6). which, according to him, was the receipt, given to the Bhag tenant, but which bore the name of Balai Mondal, and not of Defendant No. 2 Sisir Karak, as the person in whose favour it was granted. Having examined the records, it seems to us that the learned Subordinate Judge was wholly under an error as to the character of this particular receipt. He does not appear to have considered the relevant evidence at all which showed that it was merely a receipt for sale of paddy which, according to the oral evidence, was realised from the Bhag tenants, including Defendant No. 2. Clearly, therefore, the name of Defendant No. 2 would not be recorded in it as the person, in whose favour the receipt was being granted. The misapprehension in the mind of the learned Subordinate Judge as to the character of this receipt (Ext. 5/b) has led to a material error or fundamental defect in this part of this judgment and we are not satisfied that the finding of the learned Munsif on the question of the disputed bhag settlement has been properly reversed. It seems to us on the other hand, that the learned Munsif''s finding was on a consideration, and a proper consideration, of all the relevant evidence on this point. In this view, we would hold, agreeing with the learned Munsif, that, in execution of his resumption decree, the Plaintiff got actual possession, and thereafter settled the disputed land in Bhag with Defendant No. 2 and that the resistance to the Plaintiff''s settlement holder Rajnarayan Hazra was by the Defendants after they had actually trespassed into the land after the expiry of the bhag settlement of and for the year 1354 B.S. In this view, no question of Section 47 of the CPC arises in this case and the reference on behalf of the Defendants Appellants in support of their objection under that section to the decision of this Court in the case of Najerali and Others Vs. Baitulla Mondal and Others, , appears to be irrelevant and of no assistance to them in the facts of this case. We would, accordingly, hold that this new objection, raised by the Defendants Appellants in this Court, namely, the objection u/s 47 of the Code of Civil Procedure, cannot succeed and it must be rejected.

Turning now to the main point in the case, namely, whether the Defendants or any of them acquired occupancy rights in respect of the disputed land vis-a-vis the present Plaintiff, which would be available and enforceable against him, we would at once state that, having regard to the normal incident of a service tenure of a private character, as is the case here, namely, that it is resumable on the service tenant''s refusal or failure to perform the stipulated services (vide in particular, Radha Pershad Singh v. Budha Doshad I.L.R.(1895) Cal. 938, 941, it would be illogical and plainly ancmalous to allow them (the service tenants) to create tenancies under them or encumbrances, which would be binding against the superior landlord or the zemindar. That, indeed was, in substance, the view expressel in one of the earliest cases,-a leading decision-of this Court on the point, namely, Mrittunjoy Roy Chowdhury v. Kenatullah Narya (1906) 5 C.L.J. 53 : 5 C.L.J. 53. That, was, no doubt a case of chowkidari Chakran land, but the principle laid down therein, is applicable to all service tenures, having regard to the aforesaid main incident of a service-tenancy, namely, that it was resumable at the option of the grantor, when the service tenants refused or failed to perform the stipulated services, in lieu whereof, or, as or in lieu of remuneration where for, the land in question was held by them, we may add incidentally that this particular incident would attach to the service tenure, be it a case of grant (of land) burdened with service, or grant (of office) to be remunerated out of the use or the usufruct of the land, or, in other words, grant (of land) in lieu of wages or remuneration for services to be rendered (vide in this connection 10 CWN 161 (Privy Council) ; vide also Raja Leelanund Singh v. Thakur Munoorunjun- Singh (1873) I.A. Supp. 181 and Forbes v. Mir Mahamed Taki (1870) 13 M.I.A. 438 and the leading case of this Court already cited, namely, Radha Prasad Singh v. Budha Doshad ILR (1895) Cal. 938, 941 (supra) referring to and relying upon the same and on proper scrutiny neither the Privy Council case of Shrimat Lakhangouda Basov Probhu Sardesai v. Rao Shahab Baswantrao alias Annasaheb Subedar (1931) 35 C.W.N. 721 (P.C.), nor the case of this Court, namely, Atul Chandra Roy v. Sarada Sundari Dhopi (1935) 61 C.L.J. 143 (per R.C. Mitter, J.) would disclose any conflict with the above on the point, or grant of land on condition of performance of service as it is sometimes put, for separate and distinctive consideration (vide Kumar Kamakhya Narain Singh v. Abhiman Singh (1934) 39 C.W.N. 41 (P.C.) vide also Srimat Lakhangonda v. Rao Saheb Basuantrao (1931) 35 C.W.N. 721 (P.C.) (supra). It has also to be noted, in the present connection that, in this case as in 5 C.L.J. 53 supra there is no evidence that the service tenants obtained this land as middlemen for inter alia the purpose of establishing tenants thereon. If there had been such evidence, the position might have been otherwise. But, in the absence of such evidence, the service tenants'' interest was resumable as aforesaid, and they were not entitled to create any interest under them to defeat the landlord''s right of resumption.

The matter, again, came to be considered in a subsequent decision of this Court in the case of Krishna Kinkar Dutta v. Mohunt Bhagban Das (1907) 7 C.L.J. 85. There, also, the lands were Chowkidari Chakran lands and the resumption was by Government and a question arose whether, on such resumption by the Government, rights, created by the Chowkidar, during the currency of his Chowkidari Chakran settlement, in favour of third parties, would be binding against the resuming authorities, namely, the Government and this Court laid down the law in these terms:

Where Chowkidari lands are resumed by Government and settled with Zemindar all rights, created in such lands by the Chowkidar in favour of third parties, come to an end; but if any transfer has been made by the Zemindar before the resumption and the land is settled with him by the Collector, the transferee would be entitled to the benefits of such settlement.

In other words, this Court affirmed the view that the service tenant''s settlement with a third party would be binding, so far as he was concerned, but would not operate to the prejudice of his (service tenant''s) landlord, namely, the proprietor, although the latter would obviously be bound by any transfer, made by himself, either expressly or impliedly.

A similar view was expressed by this Court in the still later case of Satyendra Nath Banerjee v. Krishnasakha Kar (1920) 35 C.L.J. 185: 35 C.L.J. 185 and their Lordship Sir Asutosh Mookerjee. A.C.J. and Sir Ernest Edward Fletcher, J. approved and accepted the principle, laid down in 7 C.L.J. 85 supra and affirmed the same or a similar proposition.

In other words, the position came to he established that the tenants under the service-tenure holders would have all rights, available to them under the law vis-a-vis the service tenure holders themselves, but these rights would not be available or operative against the zemindar or proprietor, unless, of course, the service tenure itself was created as a middle man''s interest with the idea of enabling the service tenants to establish tenants thereupon or unless the rights in question had been granted or affirmed by the zemindar himself either expressly or impliedly.

The decision of the Privy Council (Anup Mahto v. Mita Dusadh (Supra) which was relied on by the Appellants and which came in much later, namely, in the year 1933, introduced no new principle and affected no change of the law, as laid down in the aforesaid earlier decisions. It merely affirmed and emphasised the view that, as between the service tenure holders and their tenants, the rights conferred by contract or under the statute, which must be applied to them as in the case of ordinary landlords and tenants, occupying similar positions, would remain unaffected. The tenants under the service-tenure holders, however, would not be entitled to press these rights against the zemindar or the proprietor unless, as laid down above, the service-tenure holders'' interest was really a middle man''s interest and that, if the tenants under the service-tenure holders had some pre-existing right (which would have been available in law against the zemindar or proprietor), Section 181 of the Bengal Tenancy Act would not affect or take away such pre-existing right. The Privy Council also emphasised the very important and fundamental aspect of the matter, namely, the special incident of a service tenure, that it was resumable by the grantor on the refusal or failure of the service tenant to perform or render the services, for which the land in question was given to him, and they drew particular attention to the wording of the section, Section 181 of the Bengal Tenancy Act, that it would not affect the incidents of service-grant or service tenure.

The above view of (1933) L.R. 61 I.A. 93 (Privy Council) , will clearly appear from the following passages in the said Privy Council decision. After quoting Section 181 of the Bengal Tenancy Act, their Lordships remarked at p. 104 of the Report as follows:

It is merely a saving clause which does not affect the rights of occupancy expressly conferred by the Act upon raiyats against this class of tenure-holders box leaves the incidents of service-tenure unaffected.

Later on, again, in the same page, they observed that "it (the Bengal Tenancy Act) is a tenancy Act and what it does is to enable this class of raiyats (tenants under the service tenant) to acquire occupancy rights against their landlord the tenure holder (service-tenant) so long as the tenancy subsists; that is to say until the landlord''s tenure is determined by resumption, leaving the rights arising on resumption to be determined in accordance with pre-existing law" and finally at p. 105, they concluded that "in their Lordships'' opinion there is a great distinction between the grant of lands on service tenure, revenue or rent free, to a raiyat to cultivate himself in lieu of wages and a grant to a tenure-holder whose emoluments are to be derived from the collection of rent from tenants holding under him as raiyats. In the former case the raiyats'' grant may well be said to be inconsistent with the acquisition of full occupancy rights because the lands are only granted to him so long as he holds the office. On the other hand, the grant to the tenure-holder is in the nature of an assignment of the landlord''s rights for the duration of the tenancy and would not necessarily involve any interference with the raiyat''s customary rights."

Whatever interpretation be put upon this latter passage, it cannot be extended beyond preserving pre-Act or pre-existing rights and beyond affirming a right of occupancy in the tenant under the service tenure as against his superior landlord except in cases where the service tenure holder is proved to have had a middleman''s interest.

It is only necessary to add here one word more with regard to the above Privy Council decision. The apparent reservation that was made by their Lordships at p. 105 of the report by purporting to keep open the question which, they stated, was left open by the Board in Secretary of State for India in Council v. Girjabaoi (1927) L.R. 54 IndAp 359; 371 does not materially affect our above statement of the law as that related to the rights of the tenants of the Jaigirdar (Saran-jamadar who was essentially a collector of revenue or and the most a middleman) as against the Crown, the ultimate proprietor or superior landlord or, in other words to the case of a middleman service tenant. It is important to observe in the above connection that in 54 I.A. 359 supra at pp. 368-9 their Lordships of the Privy Council restated and reaffirmed the well-known proposition that "on principle, the grantor would not unless specially authorised be able to convey a title larger than this own and such excess grant if made by him (the grantee) though it might he good as against himself would be void against the (his) grantor and further that as held in Secretary of State for India in Council v. Laxmibai (1922) L.R. 50 IndAp 49, on or upon the grant (Saranjam) coming to an end, the original grantor is entitled resume actual possession."

The position was, again, reviewed and considered, and, indeed it was practically settled by the decision of this Court in the case of Atul Chandra Roy v. Saroda Sundari Dhupi (1935) 61 C.L.J. 143 (supra), where R.C. Mitter, J., after reviewing the entire law on the subject in the light of the above Privy Council decision, laid down, in clear terms, that Section 181 of the Bengal Tenanry Act protects the incidents of service tenure from being affected by the other provisions, relating to the acquisition of occupancy rights or other rights under the Act, and, when land is held really in lieu of remuneration for services, one of the incidents of such a tenancy would be that, on refusal to render the services, the landlord will have right to the land and that right is specially protected by Section 181 of the Bengal Tenancy Act with of course, this reservation that the said section would have no application to a case between the service tenant or service tenure holder himself and his tenants.

All the above authorities do, in our opinion, support the view which has been taken by the two courts below and affirmed by us above, on the question of availability of the plea or defence of occupancy rights set up by the tenants of the service-tenure holder against the proprietor or the zemindar and, in accordance with that view, that defence must be held to have been lightly overruled by the two courts below.

It is to be seen that, in Anup Mahto''s case (supra), occupancy rights were claimed by the tenant of the service-tenant against the service-tenant himself and the question arose between the service tenant and his tenant and that claim was upheld. In Atul Chandra''s case (1935) 61 C.L.J. 143 (supra), as in 54 I.A. 359 also the claim was made by the service tenant against his own landlord and the question arose between the service tenant and his landlord and that claim was repelled and in the other C.L.J. cases cited namely 5 C.L.J. 53, 7 C.L.J. 85 and 35 C.L.J. 185 the claim was made by the tenant of the service tenant, not against the service tenant but against the latter''s landlord, or, in other words, the question arose between the tenant of the service tenant and the latter''s landlord, that is, the superior landlord, namely, the Crown or the proprietor, and that claim was rejected upon the finding that the particular service tenant''s tenancy was not intended to be a middleman''s interest, as in the present case. There is, in truth, no material conflict between the aforesaid cases, which represent three types, as explained above, and they lay down the law with regard to claims aforesaid and on the point of acquisition of occupancy rights by tenants of service tenants, more or less comprehensively, in the light inter alia, of Section 181 of the Bengal Tenancy Act or the underlying principle thereof and other relevant considerations and that statement of the law sufficiently, supports our above conclusion.

We would, accordingly, dismiss this appeal and affirm the concurrent decree, passed by the two courts below, but, in the circumstances of his case, we would direct the parties to bear their own costs in this Court and in the court of appeal below too. The Plaintiff, however, will get his costs in the trial court.

Niyogi, J.

I agree.