Binapani Dassi vs Jogendra Nath Patra

Chatterjee, J.—This is an appeal under Clause 15 of the Letters Patent from the judgment of S.K. Sen, J. in Second Appeal No. 859/52. The appeal involves an important question of law and further there is some conflict of decision so far as this Court is concerned. The Plaintiff granted a lease to the Defendant for a period of nine years. After the expiry of that period the Plaintiff instituted the proceeding for ejectment. The terms of the said lease were that the tenant would use the structures therein and would not remove any of them. He would use the land for the purpose of manufacturing pantiles and bricks, he would also be entitled to reside therein and get the fruits of all trees, but would not be able to cut them. It is not disputed that the interest of the Plaintiff was recorded as an occupancy raiyat. It is further not disputed that the lease was granted mainly and substantially for the purpose of manufacturing pantiles and bricks. The tenant filed a written statement saying that he was protected. According to the tenant, if the tenancy is one governed by the Bengal Tenancy Act, he is protected by the proviso (ii), Section 48(c) of the Bengal Tenancy Act and if the tenancy was governed by the Transfer of Property Act the defence was that no notice to quit was served upon him.

The trial Court held if the tenancy was governed by Bengal Tenancy Act, the tenant would not be protected by the aforesaid proviso because the tenant was never admitted in the documents by the landlord to have permanent right nor had he been in possession of the property for more than 12 years, nor the tenant had a homestead therein. According to the trial Court, the tenant had homestead in the village Kalipur where he resided and if he resided in the property in suit, it was not his homestead as he used it not for the purpose of agriculture but for the purpose of business. Considering proviso (ii) the trial Court found that the Plaintiff landlord required the property for his own use. The suit was decreed by the, trial Court.

The appeal Court agreed with the trial Court that the Defendant was not entitled to any protection in view of proviso (ii), Section 48(c). The Defendant further raised a plea that the landlord had no title. The appeal Court overruled that plea on the ground of estoppel of a tenant and the appeal was dismissed. Thereafter, there was a Second Appeal to this Court. S.K. Sen, J. held that (sic) should not by any stretch of imagination be regarded (sic) of the Defendant. But with regard to proviso (ii) (sic) agreed with the learned Advocate for the tenant protected the tenant. (sic) protected the tenant Sen, J. was of opinion that the (sic) intended for the protection of bona fide agriculturists and it appeared to his Lordship to be an abuse of the law that the Defendant should claim protection under that proviso as he was not an agriculturist at all and his Lordship held that the Plaintiff was not entitled to obtain ejectment in the absence of evidence establishing that she required the land for her use as her own homestead and for her own cultivation which evidence was, according to his Lordship, lacking in the present ease. But his Lordship finally held that the tenancy would not be governed by the Bengal Tenancy Act but would rather be governed by the Transfer of Property Act. His Lordship then considered that the ''kabuliat'' was not a bilateral document and therefore, was not a lease within the meaning of Section 107 of the Transfer of Property Act. Hence, the Defendant must be considered to be a tenant not for a term but from month to month and no notice to quit being served upon the Defendant the suit was not maintainable. On these findings the appeal was allowed, the suit was dismissed and the judgments and decrees of the Courts below were reversed. Against that decision there has been the present appeal under Clause 15 of the Letters Patent.

Mr. Chakrabortty, on behalf of the Appellants, points out in view of the decision of this Court beginning with Baburam Ray v. Mahendra Nath (1904) 8 C.W.N. 454 followed by the decision of a Division Bench presided over by Bijan Kumar Mukherjee, J. in Arun Kumar Sinha v. Durga Charan Basu (1940) 45 C.W.N. 805 and in view of the subsequent judgments of this Court the last of which was Kinuram Sadhukhan v. Hazi Md. Yusuf (1961) C.W.N. 939, Sen, J, erred in law in holding that the tenancy was governed by the Transfer of Property Act. In a case viz. Achala Sundari Dassi Vs. Satish Chandra Mondal and Others, , it was held by Chunder, J. sitting singly that on the definition of the words ''non-agricultural tenant'' and ''non-agricultural land'' in the West Bengal Non-Agricultural Tenancy Act, 1949, land which comes within the Bengal Tenancy Act and which is excluded from the operation of West Bengal Non-Agricultural Tenancy Act, 1949, is land mentioned in Sub-Clauses (b) and (c) of Clause (4) of Section 2 of the Act. His Lordship accordingly held that the original raiyat might have been governed by the Bengal Tenancy Act, but the right of a tenant under a raiyat would be governed by the aforesaid Non-Agricultural Tenancy Act and it would not be an under-raiyat in this Bengal Tenancy Act. This judgment of Chunder, J. was considered in the aforesaid decision of the Division Bench in Kinuram Sadhukhan v. Hazi Md. Yusuf (1961) 65 C.W.N. 939. Therefore, according to Mr. Chakraborty for (sic) the decision of Sen, J. that the tenancy would be governed by the Transfer of Property Act is erroneous in law. According to Mr. Chakrabortty, therefore, the tenancy must be considered to be an under-raiyat holding and if it is an under-raiyat holding, the Defendant is not protected; the protection claimed u/s 48(c), proviso (i) (2) was that the Defendant had a homestead thereon and the other protection claimed was under proviso (ii) that the landlord could not prove that she required the land for her own homestead; but according to the findings of all the Courts below the property was not the homestead of the Defendant. With regard to the proviso (ii) Mr. Chakrabortty referred to the findings of the trial Court which was not reversed by the appellate Court that the Plaintiff landlord required the structures for his own use and occupation. According to Mr. Chakrabortty, the observation of Sen, J. that there was no evidence establishing that she required the land for her own homestead was erroneous and therefore liable to be reversed. The matter which troubled us and requires very careful investigation is whether in view of the provision of Non-Agricultural Tenancy Act and in view of the growing industrialisation in the country the law that was laid down in Baburam v. Mahendra Supra in the year 1904 should still be followed. In the meantime, the Non-Agricultural Tenancy Act has come into force. The definition of the words ''land'' and ''tenant'' under the Non-Agricultural Tenancy Act would appear to include land which has not been used or has not been let out for purposes not connected with agriculture or horticulture but was let out "for residential manufacturing or other purposes". Therefore, in the definition of the words ''non-agricultural tenant and ''non-agricultural land'' would appear to be included such land as is in dispute now and it appeared to us at first that in view of the growing industrialisation in the country, the law may have to be reconsidered. But we have considered the matter very carefully and we do not think the law need be revised. The Non-Agricultural Tenancy Act made specific provision in Section 72 by which a landlord or a tenant to whom property was let out for the purpose of agriculture but which has not been used for agricultural purpose may apply to the Collector to have the property recorded as under the Non-Agricultural Tenancy Act. Therefore, the Plaintiff or the Defendant in the present case might have applied to the Collector for recording the disputed land as non-agricultural land. But none of them availed of that advantage and if there is any defect, the defect is not in the law but due to inaction in not availing of the provisions of law-Secondly, if a property has been let out to a person (the raiyat or the under-raiyat) strictly for agricultural purposes and for no other purpose, he would be violating the terms of the lease by using it for other purposes and such violation of law should not be a reason for creating better or other rights. That would be putting a premium on violation of law which can never be the policy of law. Thirdly, the circumstances of the case, are (i) the property that was leased out was a property of an area of 5 bighas which would be a small agricultural holding, (ii) an occupancy raiyat has no right under the law to create a tenancy for manufacture of tiles and bricks, nor (iii) has he any right to appropriate earth and the grant of such a lease would imply granting of a right by the raiyat which the occupancy raiyat never had; so a Court would not encourage such violation of the law. According to the decision of the Judicial Committee, it is the proprietor of the land who has the right to appropriate earth and a tenure holder or an occupancy raiyat had no right to appropriate earth. They can merely use earth for the purpose of cultivation and the occupancy raiyat had no right to grant a lease to manufacture bricks and tiles. We are quite aware that there is no evidence as to whether the Defendant was appropriating earth or not for the purpose of manufacturing bricks and pantiles. Having considered the various aspects of this matter we have no doubt that we must with respect agree with the decision of Lahiri and Banerjee, JJ. in Kinuram v. Hazi Md. Yusuf Supra which over-ruled the decision of Chunder, J. sitting singly. We add that apart from a long line of decisions which have been considered by their Lordships, we also take into account the fact that the Non-Agricultural Tenancy Act itself contains provision for converting agricultural land into a non-agricultural land and no party should get any advantage merely by violating the law. The legal position therefore is (a) if the tenure holder or a zaminder who has right to lease put a land both for agricultural and non-agricultural purposes leases out the land for non-agricultural purpose that would be non-agricultural land without any doubt; again (b) if such proprietor or tenure-holder leases out land for agricultural purposes to a person who has no occupancy right and the lessee used the property for purposes not connected with agriculture or horticulture, such lessee would also be a non-agricultural tenant. But if an occupancy raiyat to whom land has been leased out by a proprietor or tenure holder for the specific purpose of agriculture or for homestead used it against the terms of the lease creating another lease for the purposes beyond the rights of an occupancy raiyat the under-raiyat Would not be allowed to say that he had acquired more rights than the grantor had. We, therefore, hold (i) if a tenure holder or a proprietor leases out land for non-agricultural purpose such tenant would undoubtedly become non-agricultural tenant and such land would undoubtedly become non-agricultural land, (ii) if a tenure holder or a proprietor grants lease to a person for agricultural purpose and that person has not acquired any occupancy raiyat and that person uses the land for the purpose other than agriculture or horticulture that land would also be considered to be non-agricultural land, (iii) but if land is leased out by a tenure holder or a proprietor to an occupancy raiyat or to a person who has acquired occupancy raiyat for the purpose of cultivation or for the purpose of homestead and if he leased out such land for the purpose not connected with agriculture or horticulture that sub-tenant would be considered as an under-raiyat unless appropriate steps are taken under the Non-Agricultural Tenancy Act to convert the holding into a non-agricultural tenancy.

We must note that Mr. Syama Charan Mitter, who appeared for the Respondent with his usual fairness did not contest the correctness of the decision in Kinuram v. Hazi Md. Yusuf Supra. But at the bar in a good number of cases the propriety of the decision in Kinuram v. Hazi Md. Yusuf Supra has recently been challenged and so we have considered carefully the scope of the two decisions reported in Kinuram v. Hazi Md. Yusuf Supra as also the decision in Achala Sundari v. Satish Chandra Supra and we have come to the conclusion as stated hereinbefore. We agree with the decision of Lahiri and Banerjee, JJ. overruling the decision of Chunder, J. with respect to third type of cases referred to hereinbefore.

We now proceed on the basis that the tenancy of the Defendant under the Plaintiff is one governed by the Bengal Tenancy Act. The next question is whether the Defendant is protected under proviso (ii), Section 48(c) of Bengal Tenancy Act. According to Mr. Mitter, the decision of Sen, J. on that question is a question of fact with which we cannot interfere under Clause 15 of the Letters Patent. According to Mr. Mitter, u/s 100 of the Code this Court could not interfere in a Second Appeal with a finding of fact arrived at by the Courts below and that must be the position so with regard to an appeal under the Letters Patent against a decision in a Second Appeal. Mr. Chakrabortty has referred to a decision in Sk. Rahamat Illahi v. Md. Hait Khan (1943) L.R. 70 IndAp 225 where the Judicial Committee held as follows:

There is no difference in principle between a failure to appreciate and determine the real question of fact to be tried and a failure to appreciate and determine a question of fact which vitally affects the issue stated in the cases and in the latter case the failure of the Courts below to investigate and come to a finding on that vital basic question of fact equally constitute an error in law against which by virtue of Section 100 of the Code of Civil Procedure, a second appeal will lie.

We have, further, been referred to the decision in Tekait Krishna Prasad Singh v. Motichand (1943) L.R. 40 IndAp 140:

There was jurisdiction u/s 100 of CPC 1908, to set aside the decree upon the grounds that the evidence taken showed that the true question of fact which had not been considered and as to which no issue had been framed should have been answered in favour of the Defendant and that upon the evidence the High Court had the power rightly to set aside'' that judgment.

In the circumstances of the present case, the question is whether the tenant is protected under proviso (ii) because the landlord has not been able to prove that he required the land for his homestead. Both the Courts below have held that the structures that the landlord raised and let out to the tenant would not be the homestead of the tenant and in our opinion, the Courts below were right. Proviso (i) (2) would show that the tenant would be protected if he has a homestead thereon or in other words if he had constructed a homestead on the land. Therefore, the homestead contemplated under the provision of the Act is not a house which has been let out to a tenant; but a homestead erected by the tenant on the land let out. As in this case structure was raised not by the tenant it would not be homestead of the tenant. The Plaintiff has the occupancy right, the Plaintiff owns this structure and the Plaintiff has deposed in the trial Court below that he required the said structure for his own use and occupation and thus all the conditions of proviso (ii) are satisfied; it would be his homestead because the Plaintiff has the right of an occupancy raiyat on the land and he has built a structure fit for his residence thereon and there is evidence he required it for his own use and occupation. The trial Court has arrived at a finding of fact which is as follows:

The Plaintiff''s husband stated that the Plaintiff required the same for her own use. I have no reason to disbelieve him.

Hence, the finding of fact arrived at by the trial Court is that the Plaintiff required the land for his own homestead and that was believed by the trial Court. The appellate Court did not set aside that finding and that finding does not appear to have been challenged in the first Court of appeal below which was the final Court of fact. Sen, J. was pleased to observe that there was absence of evidence establishing that she required the land for her own use as her homestead and that evidence was lacking. We have already stated that there was that evidence and not merely that there was evidence but there was a finding by the trial Court and that finding was not reversed by the final Court of fact and therefore, that finding would be binding upon this Court in Second Appeal and the attention of Sen, J. was not drawn either to the evidence or to the finding. Therefore, Sen, J. failed to appreciate and determine the real question of fact on which there was evidence and further overlooked the real finding of fact and therefore, there was an error of law which can be corrected in Second Appeal as also in an Appeal under Clause 15 of the Letters Patent. We are bound as much as Sen, J, was bound to accept the finding of fact that the Plaintiff required the property for her own use and occupation and as we are so bound we must come to the conclusion that the condition referred to in proviso (ii) to Section 48(c) of the Bengal Tenancy Act has been complied with.

The result is the appeal is allowed, the judgment of this Court in Second Appeal is reversed and those of the Courts below affirmed. There was a conflict of decision which might have troubled the Courts below at the time when the matter was decided by them and we have further considered the fact that the decision of Sen, J. was made on January 29, 1959, when the decision of Lahiri and Banerjee, JJ. had not till then been reported, the decision being reported in pt. 47, vol. 63, C.W.N, on September 7, 1959, about 8 months after the decision of Sen, J. though the judgment of Lahiri and Banerjee, JJ. was delivered on September 24, 1958. It does not appear to us that the decision of the Division Bench was available to Sen, J. on the date of his Lordship''s decision. Having considered all these facts we direct each party will bear his cost throughout.

Gupta, J.

I agree.