Hari Shankar Lal Sahu and Others vs Mt. Chandu Urain

Manohar Lall, J.—This is an appeal by the plaintiffs against the decision of the learned Deputy Commissioner Subordinate Judge of Ranchi dismissing the suit of the plaintiffs which was brought for ejectment of the defendant from 4.55 acres of land in village Looiyo recorded in the revisional settlement record under khata No. 180. Defendant Chandu is the widow of one Manna Uraon, the son of Chanku Uraon, who was recorded in respect of this land in the cadastral survey record of 1910. The Land stands recorded as rent free nokrana in the name of Chanku in lieu of service and has been recorded as nokrana in the name of the defendant in the revisional survey. Chanku died 8 or 9 years ago since then the defendant is in possession of the land enjoying the produce thereof without doing any work.

The plaintiffs'' case was that during his lifetime Chanku rendered services to the landlord as dhangar and that he enjoyed the land free of rent as a service tenure. The defendant, on the other hand, asserted that the entry in the Record of Rights describing the holding as nokrana was wrong and she claimed the land as a raiyati holding in which her husband Manna and her husband''s father Chanku and before him their ancestors held as a raiyat since 1869 on payment of rent to the landlords; and in the alternative asserted that even if the holding is held to be nokrana she has obtained rights of a permanent tenant as a result of her being in possession continuously as a tenant from a very long time.

The final Court of fact has disbelieved the case of the defendant and found that the land in suit is nokrana as recorded both in the original and revisional settlements, that the entry in the Record of Rights is correct and that the defendant has failed to prove that the land is raiyati. As regards the case of the plaintiffs, the Courts below have found that the plaintiffs have not adduced any evidence to prove when this service tenure was created and what were the conditions attached to it. The Courts also found that the plaintiffs did not adduce any reliable evidence to prove that Chanku ever rendered any service to them. The Courts then took the view that as the defendant and her predecessors-in-interest have been in continuous cultivation of the land for over 12 years without paying any rent or rendering any services in lieu of rent to the plaintiffs or their ancestors the defendant has acquired a title over the land in suit by adverse possession and therefore dismissed the suit as being barred by limitation. Hence the appeal before me.

The first question to deckle is if the defendant has been able to prove whether the particular service tenure is the grant of an estate burdened with this service of nokrana. The defendant has not produced any sanad nor has she proved otherwise that the grant was a grant of an estate burdened with certain services but merely contended relying upon the circumstances that the land has been allowed to devolve from father to son and that the tenure was created from many years ago and lastly that the zamindar did not avail himself of the services but allowed the defendant to hold on. In these circumstances the principle laid down by the Calcutta High Court in the leading case in Radha Pershad Singh v. Budhu Dashad (1895) 22 Cal. 938 applies and I am of opinion that there is no justification in law for the inference that the grant was of a permanent heritable character.

In the present case it having been found by the final Court of fact that the grant was a service tenure the plaintiffs are required to prove nothing else. In my opinion, the learned Subordinate Judge was in error in requiring the plaintiffs to prove that they had actually received services in the past from Chanku or the defendant. The onus was on the defendant to prove that they, who were allowed to be in possession of the land as service tenure, had the right to hold the land adversely to the plaintiffs in their independent right. The case of the defendant must be borne in mind that she asserted not that she had any independent right but that she and her predecessors were paying rent to the landlord for this holding, and she sought to establish this by producing rent receipts which were not accepted as genuine.

In Nand Lal Sahu v. Tikait Srinivas Hukum Singh Deo A.I.R (1922) Pat. 541 it was held that the fact that no service has been rendered to the grantor of a service tenure by the grantee for more than 12 years before the institution of suit after resumption by the former is not sufficient to show that the grantee or his successors have held the tenure adversely to the grantor from the time when the service was last rendered. The Court relied upon the decision in Keval Kuber v. Talukdari Settlement Officer (1875) 1 Bom. 586 which decided that the period of limitation begins after resumption of the land from the date of the death of the original grantee as the services could no longer be performed by him. I therefore do not see any answer to the claim of the plaintiff to recover possession of the lands in suit. The suit is within 12 years of the date when Chanku died and also within a very few years of the date when the present defendant openly refused to perform services, viz. in 1932.

But it was argued that the defendant is liable to ejectment only on notice of termination of the service. The plaintiffs asserted that the defendant was holding the land as service tenure and as the plaintiffs were not willing to keep the defendant as dhangar she had stopped performing services and that they sent a registered notice to the defendant on 5th February 1935 asking her to give up possession and before that they had also sent a notice of the same kind to Chanku on 18th December 1929 the trial Court held that the notice of 1929 had not been proved to have been served. With respect to the notice on the defendant herself the trial Court says:

Nearly two years after this the plaintiffs appear to have sent another notice on 5th February 1935, (Ex. 1) asking the defendant to give up possession of the land. This subsequent notice seems to have been prompted by spite.

But on the last page of the judgment the trial Court appears to hold that as the defendant denied having received any notice that notice has not been legally proved to have been served on the defendant. The lower Appellate Court did not deal with this question at all. It appears however that serious disputes arose in respect of this land between the parties resulting in a criminal case in 1932. Ex. 4, the judgment of the Criminal Court acquitting the men of the plaintiffs on 10th February 1933, gives an idea of the disputes which then arose between the parties and also shows that the defendant openly asserted to the plaintiff that she refused to perform the services.

To such a state of affairs the principle in Ansar Ali Jamadar v. C.E. Grey (1905) 2 Cri.L.J. 403 applies, namely that this is a case where the tenant refuses to perform the services on the ground that no service can be demanded from her. The tenant therefore is liable to be ejected without a notice to quit. This follows from the remarks by Sir Richard Garth C.J., in Hurrogobind v. Ramrutno De. (1879) 4 Cal. 67 to the effect that:

A distinct refusal by a tenant to perform service incidental to his holding renders him liable for ejectment on the principle that inasmuch as the tenant holds the land by the performance, of services, as soon as he distinctly refuses to perform such services, the consideration for his being allowed to continue in possession wholly fails.

I am therefore of opinion that the defendant is liable to be ejected without service of notice. I would therefore reverse the decision of the Courts below and grant a decree to the plaintiffs for ejecting the defendant with costs throughout. I would like to add that instead of remanding the case, if I had taken a different view on the legal position than what I have stated above, I would have unhesitatingly come to the conclusion that notice was actually served on the defendant in February 1933. I have looked into the evidence and do not believe even for a moment when she says that she never received any notice. In the whole of her examination-in-chief she did not say a word as to the non-receipt of notice but she merely stated this as the last line in her cross-examination.

The presumption from the general course of conduct in sending a registered notice which has been proved to have been posted properly addressed to the defendant has not been rebutted. Leave to appeal is granted.