Dinabandhu Satpathy and Others vs Gopinath Kar and Others

Ray, J.—The appellants brought a suit for declaration that they have acquired permanent sikmi tenancy under defendants 1 to 4 in respect of the suit land measuring 1-20 acres in current settlement records bearing a jama of Rs. 6-3, and that defendants 1 to 4 have got no right to obtain khas possession of the land and the settlement entry of the current settlement record of rights recording that the disputed lands are khas dakhali lands of the defendants is erroneous. The defendants resisted the suit alleging that after the death of Natha Satpathy one of the ancestors of the plaintiffs, who held the lands on bhag, the plaintiff have got no possession of it either as bhag tenants or in any tenancy right.

Both the Courts below have found that the disputed lands have been in possession of the plaintiffs and their predecessors-in-interest for a very very long time, and that it is not the khas dakhali land of the defendants.

The learned trial Court found that the plaintiffs had a permanent tenancy right as sikmi tenants. The learned lower appellate Court reversed that part of his finding and held that the plaintiffs were mere sikmi tenants without any right of permanency. Both the Courts below also differed as to their interpretation of Exts. 1 and 2 which are two compromise petitions filed between the parties or their predecessors-in-interest in some previous suits in which there are recitals with regard to the nature of tenancy right of the plaintiffs. The trial Court held that the recitals amounted to a mere acknowledgement of a pre-existing permanent right, while the learned Subordinate Judge in appeal took the view that the recitals amounted to creating a permanent right, and, as they were not registered documents, they cannot be taken in evidence in proof of the plaintiffs'' permanent tenancy right.

I have perused Exts. 1 and 2 and they leave no doubt in my mind that the recitals in them are mere acknowledgments of a previously existing permanent tenancy. One of the documents says that the plaintiffs (meaning the present plaintiffs) should continue in possession as before, that is to say, under terms and conditions pre-existing, and then the subsequent sentences following the above are to the effect that .the defendants would not dispossess the plaintiffs or their heirs.

From the revisional settlement records it appears that the plaintiff''s have been noted to have been in possession since 1889 at an unvarying rate of Rs. 6-8.

The facts found come to this that the plaintiffs have been in possession of the disputed lands since 1889 as tenants. The tenancy has devolved from generation to generation and bears an unvarying rent. These lands undoubtedly lie within the ambits of temporarily settled tracts, and there have been two land revenue settlements since the inception of the tenancy. If it were not a. permanent tenancy with fixed rent, the rent could have been enhanced according to the wishes of the landlords, namely, the defendants. This long possession coupled with uniformity of rent and heritability, and also, as it appears from the record of rights, the right of sub-letting which means transferability raise a presumption of permanency.

As against that, the only argument that is urged by Mr. B.N. Das is that once a tenancy is shown in the settlement papers to be a sikmi tenancy, no permanency can be attached thereto in view of the provisions of the successive Tenancy Acts according to which an under-raiyat is nothing but a tenant-at-will liable to be evicted on notice to quit. This is an argument which I cannot accede to. In assessing the value of this submission, it has to be borne in mind that the defendants'' tenure is one of a Bajiaftidar. Their predecessors once claimed to be revenue-free proprietors but on account of absence of sovereignty in the grantor, their revenue-free character was confiscated and they were assessed with light rents. My point in tracing this origin is that Bajiaftidars are not raiyats within the definition assigned to the word in the successive Tenancy Acts. For convenience sake, they have been classified as raiyats for certain purposes. Accordingly their under-tenants have been nomenclatured as under-raiyats. There is nothing in the tenancy Act declaring that any pre-existing right should be taken to have been deprecated (sic depreciated) on account of the tenancy being classed as a sikmi tenancy. In view of the provisions of the Orissa Tenancy Act, occupancy right of an under-raiyat is not inconsistent with its provisions I do not think that the presumption of permanency has at all been rebutted by the subsequent, settlement records recording the tenants as sikmi raiyats. This was dug to the classification recognised in the Tenancy Act. There is nothing in the Tenancy Act to take away a pre-existing right on account of the fact that a particular permanent tenancy answers the description of a tenancy in the Tenancy Act which has been given certain incidents of a temporary character in the absence of any contract to the contrary.

Swami B.N. Das, the learned Counsel for the responents in support of his Submission that the circumstances involving resumption of lost grant of permanent tenancy do not apply to agricultural lands but only to non-agricultural ones, cited the following authorities: Abdul Hakim Khan Chaudhuri Vs. Elahi Baksha Sha and Others, , AIR 1941 55 (Privy Council) , Prosunno Coomaree v. Tutton Bepari 3 Cal. 696, Maharam Chaprasi v. Telamuddin Shah CriL.J. 220 and Gungadhur Shikdar v. Ayimuddin Saha 8 Cal. 960.

The case in Abdul Hakim Khan Chaudhuri Vs. Elahi Baksha Sha and Others, is a case relating to-non-agricultural (bastee) lands and the decision turned upon the nature of the tenancy at its origin which was known and it was held that, mere absence of written lease would not improve the position. But in the text of the judgment four decisions of the Privy Council, namely, Gopal Lall v. Tilluck Chunder (1863) 10 M.I.A. 183 , Dhunput v. Gooman Singh 11 M.I.A. 433 (P.C.), Ram Chunder v. Jogesh Chunder 12 Beng. L.R. 229 and Raja Satyasaran Ghosal v. Mahesh Chandra 12 M.I.A. 263 have been referred to as authorities enunciating grant of permanency to ancient agricultural tenancies of unknown origin. The case in AIR 1941 55 (Privy Council) is a direct authority in which tenancies of arable lands of which the origin had been lost in antiquity, were inferred to be permanent from circumstances, such as, heritabilty, transferability, smallness of rent and other circumstances of similar nature. The following paragraph, quoted from the decision indicates that tenancies for agricultural purposes do not compare unfavourably in the matter of inference of permanency from the presence of circumstances such as above. The paragraph reads:

Their Lordships would not willingly cast doubt upon the principle that the fact that a tenancy is for agricultural purposes'' does not prima facie indicate that, it is permanent or indeed that it is more than an annual tenancy. The inference of permanence is an inference which it is difficult to make and which requires the presence of circumstances explicable when taken as a whole only on the hypothesis of permanence. A full exposition of the principles upon which such inference is to be made or rejected has been given by the Board in previous oases and need not here be repeated: Secy. of State v. Luchmeshwar Single 16 I.A. 6 and Nabakumari v. Behari Lal 34 I.A. 160. Their Lordships agree with the High Court in thinking that the inference in the present case is fully warranted.

The case in Prosunno Coomaree v. Tutton Bepari 3 Cal. 696 is not applicable to the present case. There the penancy was at the beginning a holding-at-will and the holder had built a dwelling house at a very trifling expense. And it was held that there is no law in the country which converts a holding-at-will into a permanent tenancy merely because the tenant without any arrangement with his landlord chooses to build a dwelling house upon it.

In Maharam Chaparasi v. Telamuddin Shah Cri.L.J. 220 the circumstances, whose presence will lead to an inference that the tenancy was in its inception permanent, have been, enumerated and elaborately discussed. It is in this case that the four Privy Council decisions, already referred to, have been relied upon as authorities though the case deals With a land let out for residential purposes, while the Privy Council cases dealt with agricultural tenancies.

The case in Gungadhur Shikdar v. Ayimuddin Shah 8 Cal. 960 does not assist the respondent. The case is no authority for the proposition that circumstances of antiquity, herita-bility, transferability and the like will not lead to an inference of permanency in the case of agricultural tenancies.

As it is a matter of presumption, such an inference could be defeated only if it could be shown that creation of such a tenancy on or before 1889 was against law or custom. There was no law at the time prohibiting a Bajiaftidar from creating permanent tenancies under him.

At any rate, it is clear that since the date of Exts. 1 and 2, namely, 1906, the plaintiffs have been asserting their right and possession as permanent tenants, and they must be taken to have acquired the limited interest of a permanent tenant Under the defendants by adverse possession, or, at any rate, abstinence on the part of the landlords to take steps to eject them under the Tenancy Act fortifies the presumption of permanence.

Therefore, looked from whichever standpoint, there is no answer to the plaintiffs'' claim of a permanent sikmi tenancy They are, therefore, entitled to the declaration prayed for. Under the circumstances, I allow the appeal, set aside the judgment of the lower appellate Court and restore that of the trial Court. Under the circumstances of this case, I make no order as to costs of the second appeal.