Chundrabati Koeri and Another vs Harrington

Richard Couch, J. 1. The Plaintiffs in this suit and Appellants in this appeal alleged in their plaint, which asked for recovery of possession and mesne profits, that they are proprietors and zemindars of a third share of mouzah. Dahia, pergunnah Naipore, and that a mostajiri settlement-a lease-of the mouzah, except 3 bighas 14 cottahs of khodkasht land, dated the 3rd of July, 1877, was made by the Plaintiffs and the husband of the first Plaintiff to the Defendant; that at the expiration of the lease the Defendant did not give up possession of the leased share of the mouzah, and was forcibly holding possession thereof. The plaint was filed on the 13th of March, 1885, the Defendant being stated therein to be Mr. T. Poe. 2. In the order-sheet in the record of proceedings it appears that on the 17th of April, before the time allowed for filing the Defendant''s written statement expired, an order was made on the petition of the Plaintiff that E.T. Harrington should be made a Defendant in the place of A.T. Pugh, and the plaint be amended accordingly. A.T. Pugh is evidently a mistake for T. Poe, which is not the only inaccuracy in names in the documents in the suit. This order is not in the proceedings, and the reason for making. it does not appear. It could not, however, have been made under Section 368 of the Code of Civil Procedure, in consequence of the death of T. Poe, as in that case a summons would have been issued to Harrington, as his representative, to appear and defend the suit, which does not appear in the order-sheet to have been done. Apparently the suit was continued against Poe under the name of Harrington. Poe is the person who is stated in the plaint to be holding possession when it was filed, and is described in the title of it as proprietor of the Bhugwanpore concern-meaning the indigo factory. This is material as to the right of occupancy, which is one of the questions in the case. A right of occupancy cannot be transferred, and it is necessary that Poe should have been in continuous occupation. 3. In the written statement of Harrington, filed on the 11th of May, the defence set up is "that since a long time the Defendant, as tenant, got possession of 85 bighas of land in mouzah Dahia while the aforesaid mouzah was joint. Before 1278 F." -1870-"the Defendant acquired the right of possession in respect of the aforesaid land. Out of the aforesaid land 34 bighas 3 cottahs 8� dhoors has under the butwara "-partition-" fallen into the putti"-share-" of the Plaintiffs, and it has been held by the Defendant as tenant after the expiration of the term of lease. The Defendant being a tenant enjoying the right of occupancy is not liable to ejectment." In another written statement of Harrington, filed on the 12th of May, the same defence is set up as to the 34, &c., bighas, and it is said that the remaining land is not held by the Defendant. Thus there were two questions: 1, Whether the Defendant had acquired a right of occupancy in the 34, &c., bighas. 2. Whether the Defendant was in possession of the remaining land. The Lower Court decided both questions in the Plaintiffs'' favour. The High Court has reversed the decree, and ordered the suit to be dismissed. Their Lordships have to decide both questions. 4. As to the first, the evidence is both oral and documentary. The witness Jowhur Lal, seventy-three years old, an inhabitant of Dahia, and a small shareholder in Hurpore Chuhar, the principal mouzah, deposed that for thirty-four or thirty-five years before the trial 34 bighas in Dahia had been in the possession of the factory under indigo cultivation; and the witness Nund Lal Roy, aged sixty years, a shareholder in Dahia, deposed that indigo was planted by the factory in thirty-four bighas which now "lie in the putti (or share) of the Plaintiffs," that at the time of the ijmali (the joint ownership) they were in the putti of the other two-third sharers, that the thirty-four bighas were granted to the saheb-meaning the factory--thirty-four or thirty-five years before the trial, and since that time the factory had been in possession of the thirty-four bighas cultivating indigo. Other witnesses deposed to the same effect. 5. By a pottah bearing a native date corresponding with the 29th of May, 1856, Bahal Roy and Dukha Ray, described therein as shareholding proprietors of mouzah Harpore Jower and two dependent mouzahs, leased about one-ninth share held and owned by them to Mr. A.B. Lowe, mokhtar on behalf of Mr. Kitt Macleod, proprietor of the Bhugwanpore and Surajpore factories. The lease stated that the lessee had been in possession and occupation of the leased property, and was to cultivate indigo or other crops and get cultivation made. 6. In April in the following year one Posan, Ray presented a petition to the magistrate under Act IV. of 1840, regarding the possession of 20 bighas 11 cottahs 6 dhoors of khodkasht land in mouzah Dahia, the dakhili of mouzah Hurpore Chuhar. The petition stated that certain persons whose names are given, proprietors of a portion of mouzah Hurpore Chuhar and Hurpore Berhal, granted a ticca pottah (in respect of usli and dakhili) in favour of Mr. Macdonald, the proprietor of the Bhugwanpore factory, and that the servants of the factory had ploughed up the crops sown by the petitioner and had dispossessed him, and prayed that possession might be awarded to him. 7. The record of the magistrate''s judgment is dated the 21st of April, 1857, and the Defendant is stated to be Mr. E.T. Poe, proprietor of the Bhugwanpore indigo factory. The case was dismissed on the ground that the Plaintiff had failed to prove any one of three points: 1. That the land was in the Plaintiff''s possession as a shareholder in Dahia. 2. That the land was in Dahia. 3. That the parties who granted a lease of their share to Mr. Poe had no share in Dahia, It is immaterial whether the former proprietor of the factory was called McLeod or Macdonald. Mr. Poe appears to be, then, the proprietor; and in a receipt for rent in 1859, which will be hereafter noticed, he is called proprietor by purchase of 16 annas (the whole) of the factories of Bhugwanpore, &c. The Subordinate Judge takes a very erroneous view of this judgment, when he says of it in his judgment, "It is conclusive proof, showing that the ryoti holding now set up did not then exist." It was not proof as to any holding. It proved only that a charge of dispossession was made against Mr. Poe, and was dismissed. As it does not appear that the Plaintiffs, or any persons through whom they claim, were parties to the proceeding, the statements in the petition are not evidence either for or against the Plaintiffs. 8. There are in the evidence six receipts for money received "from the general agent of Mr. E.T. Poe" for rent of land in indigo and jai (oat) cultivation. They are dated as follows: 30th of September, 1859 (two); 23rd of July, 1860; 5th of July, 1862; 3rd of February, 1864; and 14th of March, 1868. There is also in the record a kabuliyat executed by Mr. L.G. Crowdy, described as mokhtar of the Bhugwanpore, Surajpore, and other concerns, pergunnah Naipore, which states that he had leased a third out of the whole of mouzah Dahia at an annual rental of Rs. 525 from the beginning of 1275 to 1283 F. (September, 1867, to September, 1876), being a period of nine years, and on receipt of a pottah from Mussummat Chundrabati Koeri, daughter of Janki Roy, deceased, and mother and guardian of Goman Singh, minor, had entered into possession of the estate leased. Then follow these words: "For this reason, I do hereby declare that I, the declarant, shall by good treatment keep the resident and non-resident tenants satisfied and contented, and shall to the best of my ability cultivate or get others to cultivate the aforesaid village with indigo or with other crops." The pottah is not in the record. In 1874 the owners of Dahia took proceedings to obtain a partition of it; and on the 15th of June, 1874, Mr. William 8. Crowdy, described as the manager and general agent of the indigo factory of Bhugwanpore, presented a petition complaining that the butwara (partition) amin had omitted to record in his measurement of the lands of the mehal Hurpore Chuhar the indigo cultivations made by the Bhugwanpore factory in about eighty-five bighas of land of the mehal, which it was his duty to do. The Deputy Collector dismissed this petition on an explanation made by the amin that he had recorded the name of the malik-the owner. On an appeal to the Collector he allowed the appeal, and by an order dated the 6th of August, 1874, he directed the amin "to mention the plots under indigo, together with the names of the planter and the concern." This was done, and there is in the Record an extract from the khusra (rough paper) of measurement of the lands of mehal Dahia prepared by the partition amins. In this 36 bighas 18 cottahs 6 dhoors of land are stated to be "in the zerat cultivation of indigo of the Bhugwanpore factory." 9. Of the documents in evidence, the next in date are a lease and kabuliyat thereon dated the 3rd of July, 1877, the lease being, with other lands of other owners, of the third share of Dahia, which had been awarded to Chundrabati Koeri in the partition. It is the lease referred to in the plaint as the foundation of the suit. In it and in the kabuliyat there is a provision that the lessee is to cultivate and get others to cultivate indigo, oats, or any other grain or crop. 10. Both the First Court and the High Court have found what, in their Lordships'' opinion is proved by the evidence, that the Defendant had possession of the land in the Plaintiffs'' putti, which he now states to be 34 bighas 3 cottahs 8� dhoors, from 1850. But the First Court held that the "possession was all along under one or another mostajiri lease, and that therefore he did not acquire any right of occupancy." The High Court held that there was a right of occupancy; but the grounds of their opinion do not appear to their Lordships to be clearly stated. It appears to their Lordships that the leases were for the purpose of cultivating the land as a raiyat, and were not ijaras; and that the decision of the full Bench in Sheo Prokash Misser v. Ram Sahoy Singh (1) is applicable to this case. There it was held under Bengal Act VIII. of 1869, the law in force during part of the occupation in that case, and under Act X. of 1859 previously in force, that a raiyat who has held or cultivated a piece of land continuously for more than twelve years, but under several written leases or pottahs each for a specific term of years, in which there is no express stipulation for re-entry, is entitled to claim a right of occupancy in that land. Therefore, in the opinion of their Lordships, there is a good defence to the suit so far as regards the 34 bighas 3 cottahs 87frac34; dhoors. 11. The plaint stated that the quantity of cultivated land in Dahia, except 3 bighas 14 cottahs, which were excluded from the pottah and kabuliyat, was 89 bighas 7 cottahs 7 dhoors 15 dhoorkis. The Defendant in his written statement said this was not true, that, "according to the measurement which took place in 1880, only 63 bighas 9 cottahs 13 dhoors 15 dhoorkis of land was found to comprise the entire putti of the Plaintiffs which was held by the Defendant." As the suit was dismissed by the High Court this question of the quantity of land included in the lease has not been determined by that Court in this suit. In a suit for rent which by consent of the parties was tried together with this suit, the first Court decided this question against the Defendant, and there does not appear to have been any appeal upon it. 12. As to the second question-possession by the Defendant of the remaining land-the First Court thought there was reliable evidence that the Defendant was in possession, referring to three of the Plaintiffs'' witnesses as proving it. The Defendant appears to have mainly relied upon a lease to one Mannu Chowdhry, made by Muna Koeri, the mother-in-law of Chundrabati, dated the 25th of November, 1884. This lease alone, if really made, would not be evidence of possession by Mannu Chowdhry, and only one witness, Dukha Mahton, a holder of two bighas, deposed to payment of rent to him. Neither Mannu Chowdhry nor Mr. Crowdy, the manager of the factory, who must have known about the possession, was called as a witness, nor any proof given that either of them could not be called. The High Court found that the Defendant was not in possession of the land, that it was in possession of the "Plaintiff''s mother-in-law as owner." They rest this finding mainly upon the report of a police officer, made in consequence of a petition of Muni Sing, the husband of Chundrabati, after the suit was instituted, that the Defendant had sided with his old co-sharers in the village, and had given orders that whenever he should go to collect the rents a criminal case was to be brought against him. The High Court say, "In that (the report) the police officer intimates that, in his opinion, the case was untrue; that the mother-in-law, Mussummat Muna Koeri, had only one daughter, who married Muni Singh, and on that occasion she had made a gift of the property to her daughter and her son; that Muni Singh, on coming into possession, appropriated all the money and left the mother-in-law in a state of starvation; that she in retaliation took possession of the property from the saheb (the factory), and leased it out on receipt of Rs. 600." This report is not in the Record. Their Lordships are unable to understand upon what ground the High Court considered that the opinion of the police officer was evidence of Muna Koeri being in possession. A police officer has not authority to make a judicial inquiry about possession, and his opinion most probably was founded entirely upon hearsay. Seeing that Mr. Crowdy was not a witness, it appears to be possible that the allegation in the petition of Muni Singh of collusion was true, and that the lease was made to be used as a defence to the suit. The finding of the First Court on this question of possession was in accordance with the evidence, and should not have been reversed by the High Court. 13. Their Lordships'' attention has been called to the inquiry which took place for the purpose of ascertaining the lands in which the Defendant claimed his right of occupancy. On the hearing of the appeal, the High Court rightly held that the onus lay on the Defendant to point out these lands, and they referred it to the District Judge to depute an amin to find out the "lands covered by the khusra of the butwara." That appears to be right in principle. The Defendant was bound to identify the 34 bighas 3 cottahs 8� dhoors which he claims, and to show that they are in the khusra and in the putti of the Plaintiffs, as he alleges in his written statement. But the finding of the amin does not specify any such quantity of land. He finds that the lands now identified as the Defendant''s jote are 76 bighas and a fraction by one measure and 36 bighas and a fraction by another, and that the indigo plantation land in the khusra is 49 bighas and a fraction. In dismissing the suit the High Court say, "We accept the report of the amin, and we find that the District Judge has substantially carried out the remand order." Perhaps, for the purpose of dismissing the suit, the amin''s findings were sufficient. But for the purpose of ascertaining the precise land claimed by the Defendant the findings are abortive and useless. And as their Lordships hold that the suit should not be dismissed, and that it is necessary to ascertain the lands claimed, there must be a fresh inquiry. 14. The result is that the Plaintiffs are entitled to a decree for possession of the land included in the lease of 1877, except the 34 bighas 3 cottahs 8� dhoors, in which the Defendant should be declared to have a right of occupancy, and the decrees and order of the Courts below ought to be reversed and the suit remanded to the High Court to have an inquiry made as to the situation and boundaries of these last-mentioned lands, and also of the remaining lands included in the said lease, and thereupon to make a decree for possession to the Plaintiffs of the remaining lands and mesne profits thereof, with costs to the parties in the Courts below in proportion to the result. Their Lordships will humbly advise Her Majesty accordingly. 15. In the special circumstances of this case their Lordships are of opinion that the Appellants should have the costs of this appeal.