Chagganlal Marwari and Others vs Indra Keot and Others

Shearer, J.—These two appeals, which have been heard together, arise out of appellate decrees of the District Judge of Man-bhum, dismissing suits in which it was sought to evict the defendants from certain land which was originally settled with their grandfather, one Bisu Keot some sixty years or so ago. Bisu Keot constructed a house on this land, and subsequently, his two sons Debakar Keot and Rakhal Keot seem to have partitioned the house between them. For hat reason, apparently, two suits were instituted, one against the son af Debakar Keot and the other against the sons of Rakhal Keot. The proprietor of the land in suit was Rai Bahadur R.C. Sinha, who it is said, was at one time the Government Pleader at Purulia. In 1924 the Rai Bahadur sold this and other land to the plaintiffs.

The question that arises in each of the appeals is whether or not the Courts below were correct in drawing from the circumstances, which were proved, the inference that the tenancy of Bisu Keot was a permanent tenancy and his grandsons were not liable to be evicted. In one of the suits reliance was placed on the circumstance that Debakar Keot had mortgaged his interest in the property and that in due course this mortgage had been sued upon and a decree obtained. This was in 1905. The mortgaged property was sold in execution of the decree, and, in 1911, was reconveyed by the decree-holder who had purchased it himself, to Rajani Keotani, the wife of Debakar Keot. Later, in 1913, Debakar Keot mortgaged his interest in the property again, and in 1924, the mortgagee assigned his right under the mortgage to a third person. There is a recital in one of these mortgage deeds that the rent payable for the land in suit was fixed permanently.

Clearly, however, this was not, strictly speaking, admissible in evidence at all, and, if it had been, could not have been of any weight as against the landlord. The learned District Judge observed that there was no reason to suppose that the litigation which ended in the mortgage decree passed in 1905 was collusive. That may very well be so. It may be that Debakar Keot, and the persons who advanced money to him on the security of his interest in the property, believed that he and his brother Rakhal Keot had permanent rights in it. In order, however, to create an inference that the landlord had made a permanent settlement of the land, it was incumbent on the defendants to show, not merely that the sons of Bisu Keot and persons who were ready to lend money to them had proceeded on the assumption that Bisu Keot had permanent rights in the land, but that the landlord, had been aware of and acquiesced in these transactions. No evidence was, however forthcoming to show that the landlord had recognised the mortgagee as his tenant after the mortgagee had purchased an interest in the property in execution of his mortgage decree.

The learned District Judge ought, I think, to have been the more chary about drawing the inference which he did from the behaviour of Debakar Keot in mortgaging his interest in the property, as it was in evidence that the landlord had not recognised the sons and grandsons of the original tenant, Bisu Keot. Receipts for rent apparently continued to be issued in the name of Basu long after Bisu died.

It is contended that if the landlord had not recognized Bisu''s heirs as having any rights in the land he would have taken steps to evict them and would not have permitted them, as he did, to continue for many years'' in possession. As, however, was pointed out by Chakravarty J. in Abdul Hakim Khan Chaudhuri Vs. Elahi Baksha Sha and Others, , landlords may refrain for one reason or another from evicting the heirs of their tenants and no inference as to the permanency of a particular tenancy can be drawn from such conduct on their part. To my mind, when it is remembered that the landlord of this particular holding was a lawyer, his conduct in taking care to see that receipts for rent were granted to Bisu''s sons and grandsons, not in their own names, but in the name of Bisu, is, of greater significance and suggests that, while reluctant to evict Bisu''s sons he did not admit that they had and was anxious to prevent their acquiring, permanent rights in the land.

Another circumstance, on which the Courts below relied was that Bisu Keot had erected a house on the land which was settled with him.

In this connexion the learned District Judge relied on Shaikh Dargahan v. Hafiz Mohammad AIR 1938 Pat. 333. The question however that arose in that case was whether the circumstance that the buildings standing on certain land were kachcha and not pakka raised a presumption that the land had not been settled permanently. That question was answered in the negative. The decision has no real application to the facts of the present case. The land settled with Bisu Keot was a very small parcel of land, and, very probably, it was intended from the beginning that he should build a house for himself on it. The mere fact that this was so and that a house was constructed would not of itself create any strong likelihood that the tenancy was intended to be a permanent one. The house does not appear to be of any great value and, although a portion of it is made of bricks it is not clear when this portion was constructed. An attempt to evict the defendants was made as early as 1922 and it is by no means impossible that certain alterations were made to the house then with a view to creating a defence in the ejectment suit which was threatened. Thirdly, the learned District Judge relied on the circumstance that the rent payable for the land was a very low one, namely, 4 annas a year and that, although the land was situated in the town of Purulia and land values there were rising, no attempt had ever been made by the landlord to enhance it.

In this connexion the lower appellate Court referred to Bireswar Mookerji v. Troilokhya Dasi 30 C.W.N. 709. That was a case in which land in Howrah had been let out for building purposes and, although the value of land there had been rising quite abnormally for some considerable time prior to the institution of the suit, no demand had ever been made for the payment of enhanced rent.

It is not clear to me that the circumstances in this case are at all parallel. It may per. haps be that the value of the land in suit has appreciated since Bisu Keot entered into occupation of it, but there does not appear to be any evidence on the record to show that over any considerable period there has been a marked and progressive rise in the value of land in this locality. In any event, failure on the part of the landlord to demand enhanced rent would have to be set against the fact that he contemplated evicting the tenant in 1922, that he did not acquiesce in any of the alienations and that he refused to recognize the heirs of Bisu Keot. In my view the proper inference to be drawn from the circumstances, taken as a whole, is that the tenancy was not a permanent one.

On behalf of the respondents in Second Appeal No. 304 of 1940 it was suggested that they had acquired a right to hold the land in suit permanently on a rent of 4 annas by adverse possession. This plea was not, however, taken in the Courts below and there is clearly no substance in it. As I said at the outset, there was no very good reason why two suits instead of one were brought. The defendants in both suits are joint tenants, the landlord, it appears, never having recognized the sub-division of the property or accepted rent from each set of defendants separately.

The mere fact, therefore, that the defendants in the suit out of which Second Appeal No. 304 of 1940 arises may not themselves have paid rent since 1922 when a notice to quit was served on them, is of no importance. The rent has admittedly been paid by some of the joint tenants.

If a landlord serves a notice to quit on a tenant and, instead of taking further steps to evict him when the notice is disobeyed, accepts rent from him for a period of more than twelve years, the tenant cannot, if he subsequently institutes an ejectment suit, take !the plea that he has acquired a right to iremain in occupation of the property by adverse possession : Datto Shivram v. Babasaheb Malhar AIR 1934 Bom. 194. Second Appeal No. 304 of 1940 will be allowed to this extent that it will be declared that the defendants are liable to be evicted. As however it was not proved that a proper notice to quit had been duly served, it will be necessary for the plaintiffs to institute another suit.

The suit out of which second Appeal No. 303 of 1940 arises was dismissed not only on the merits but also on the ground of non-joinder of parties. The person, who it was said, ought to have been joined in that suit was Bhim Keot who was a defendant in the other suit. The suit ought clearly not to have been dismissed in toto on such a ground. Second Appeal No. 303 of 1940 will be allowed and the suit will be decreed. The appellants are entitled to recover costs throughout except that in this Court.

I would not allow any hearing fee as there was no contest except by the guardian ad litem of the minor respondents in one of the two appeals.