Jogendra Singh and Others vs Maharaja Kesho Prasad Singh

Jwala Prasad, J.—This appeal arises out of a suit in ejectment.

The plaintiff is the Maharaja of Dumraon. Briefly speaking his case is that the land in suit measuring about 125 bighas, situated in two mauzas called Katar and Batra, is his zerait land known as Deori zerait land, and was let out from time to time for a fixed term of years; the last lease was in favour of Nakchhedi Lal and Ram Bahadur Singh, from 1307 to 1316; that on the expiry of this lease it was again given to Ram Bahadur Singh under the orders of the Court of Wards, which was then in charge of the estate] for three years from 1317; that defendants Nos. 1 to 46 are residents of the Sam village and are related to each other and they in Collusion and with the consent of one another took various proceedings with a view to establish their raiyati claim to the land in suit and to the prejudice of the plaintiff, and re used to give up possession after the expiry of the lease in spite of the notice served upon them. The plaintiff, therefore, brought the present action in the Court of the Subordinate Judge of Shahabad, for recovery of possession of the land in dispute and for mesne profits.

The Court below has decreed the plaintiff''s suit for possession directing the amount of mesne profits to be determined later on, evidence on which was reserved.

There were 46 defendants in this case, some of them did not enter appearance and some did not contest the plaintiff''s claim, and some of them claimed portions of the disputed lands as their gujashta holding.

The defendants, 25 in number, have appealed to this Court and repeat the contentious which were made on their behalf in the Court below and disposed of by the learned Subordinate Judge. They dispute the finding of the Court below that the land in dispute is the trait land.

The land has been described as zerait in all the kabuliyats whereby the land was in possession of the lessees from time to time. The first kabuliyat is dated the 20th July 1872, for 1280 to 1286, executed by Hari Singh. The second kabuliyat is dated the 27th May 1879, executed by Gopi Raut, for 1287 to 1296. The third kabuliyat is dated the 18th April 1888 executed by Nakchhedi Xal and Rajpat Singh for 1296 to 1306. The fourth kabuliyat is dated the 23rd June 1899, executed by Nakchhedi Lal and Ram Bahadur Singh, defendant No. 1, for 1307 to 1317. All these kabuliyats describe the land as zerait of the proprietor, the lessee having covenanted not to

Sub-let the leasehold property on kathana settlement unless the proprietor permits him to do so and that on the expiry of the term of lease the proprietor hall be at liberty to settle the land with whomsoever he may like.

The lessees were further prohibited from planting any tees themselves or through anybody else. This was obviously with the object of preserving the cultivable nature of the land, for the plantation of such permanent trees would impair the character of the land for cultivation purposes, la the body of these kabuliyats the Und is described, in places more than one, as the zerait of the proprietor and the object of the covenants in the lease was to preserve that character. Ram Bahadur Singh, defendant No. 1, who is one of the executants of the last kabuliyat cannot in face of these covenants in the document contend that the land in suit was not the zerait of the proprietor, or that he or any of the lessees had any right to settle the land for terms exceeding those of their own.

The Dumraon Raj Treasury chalan dated the 26th May 1909, shows payment of rent of the land in dispute in the treasury of the Raj. It describes the land as zerait Katar and Barah Batra. This chalan bears the signature of lessee Ram Bahadur Singh, defendant No. 1. Even the rent-receipts filed on behalf of the defendants describe the land as zerait; in some of the receipts the tenants have been described as shikmidars, in some as thikadars and in others as jotedars. The oral evidence adduced in this case also shows that the land was commonly known as the Deori zerait. Even the defendant, witness No. 2, a son of the former as see, and the lessee himself for a pretty longtime admitted in cress-examination that the land in suit is called the zerait land. Mr. Lakshmi Narain Singh contended that the description in the kabuliyats and in the rent-receipts only showed that the Badhar in which the land itself is called zerait, but that the land itself is not zerait in the true sense of the term as referred to in Chapter XI of the Bengal Tenancy Act. The learned Subordinate Judge has pointed out that it is true that in this case the landlord has not been able to prove that the land in question was cultivated as zerait by the proprietor himself with his own stock and by his own servants for twelve continuous years immediately before the passing of the Act as is required by Clause (a) of Section 120; but that the land was recognized by village usage as proprietor''s zerait land, as if required by Clause (b) of the section.

Now, two of the leases ate of a period before the 2nd of March 1883, and these kabuliyats show that the lane in question was let out as proprietors private or zerait land. The description of the land, therefore, in these exhibits assuming for the sake of argument that it referred to the Badhar, shows the notoriety of the land in the locality and is evidence which, under the section, may be considered as proof of the character of the land being zerait. We, therefore, agree with the view of the Court below that the land in dispute has been proved to be the zerait land of the plaintiff.

Mr. Lakshmi Narain Singh then contends that even if the land were zerait land, the appellants acquired tenancy rights by being in possession thereof as tenants lot a long period, more than twelve years prior to the institution of the suit. This contention is based upon the rent-receipts filed in this case. All these receipts axe pf the time of the lessees. There is no receipt of a prior date. These defendants claim that they were let into the occupation of the land by the lessees of the Dumraon Raj from time to time and. although they did not take any settlement directly from the Raj, they are entitled to claim the tenancy right against the Raj. The proposition put forward by Mr. Lakshami Narain Singh appears to me to be fundamentally unsound. Tenancy is created by contract, either express or implied, between the landlord and the tenant, or by Statute. In the present case there was no privity between the Raj and the defendants. There was, therefore, no tenancy created by contract. The lessees had no authority to settle the lands and to create raiyati interest therein. Therefofe, tie Dumraon Raj proprietor of the land, is not bound by the settlement made by its lessees in excess of the rights concurred upon them by the several leases. Now, their possession over the land for a number of years would not in the least create by Statute any tenancy right in them as against the Dumraon Raj, inasmuch, as there must be at the inception a tenancy created by a contract between the land, lord and the tenant, and holding possession or the same as a tenant or raiyat for a continuous period of twelve years might under the Statute called the Bengal Tenancy Act create a right of occupancy against the will of the landlord. As observed above, these defendants did not take any settlement of the land, directly from the Maharaja, nor was there any acquiescence on the part of the Raja in their holding possession of the land. After the expiry of the lease no receipt has been granted by the Raj and there was, therefore, no recognition and consequently no implied contract of tenancy in favour of the defendants.

Mr. Lakshmi Narain Singh relied upon the well known case of Binad Lal Pakrashi v. Kalu Pramanik 20 AC 708 (FB) : Ind. Dec. (NS) 477 in support of his contention that, although the lessees of the zerait land had no occupancy tight themselves, and were merely trespassers after the expiry of the lease, yet the right created by them in favour of the defendants will be binding upon the real proprietor, the Maharaja of Dumraon. I have, tried to quote the essence of that ruling in the way that Mr. Lakshmi Narain Singh put it so as to make it applicable to his contention; but that is not the essence of the ruling, nor is that principle deducible either directly or by implication from anything observed by their Lordships in that case. There the title was Unknown the man in possession of the subject matter and exercising all the powers and functions of a title holder made settlement with tenants who bona fide believed that the lessor had title in him. It ultimately turned out that the lessor was only a trespasser, and that the real proprietor was a third person. Here there was no mistake as to rights of the lessees who are said to have granted the tenancy right to the defendants. It was well known that the proprietor of the land was the Maharaja of Dumraon. It was equally known that the lessees had only limited interest for a fixed term of years. Therefore the principle of that ruling will not apply and it was pointed out in a later case, which I appropriated in my decision in the case of Kuman Das v. Gulam Ali Nadaf 37Ind. Cas. 323 : PLT 284 that the case of Bind Lal Pakrashi v. Kalu Pramanik 20 AC 708 (FB) : Ind. Dec. (N.S.) 477 "is an encroachment upon the ordinary rule of law, viz., a grantor is not competent to confer upon the grantee a better title than what he himself possesses and it must be cautiously applied and is not to be extended." The result will be disastrous if the decision in that case were extended to apply to the facts of the present case. A lessee then holding for a term of years, say for five year, who after the expiry of that term ceases to hold the land, will upon the contention of Mr. Lakshmi Narain Singh be able to grant a permanent right of tenancy to a third person without the permission and knowledge of the landlord. Nothing will be more profitable than to take a lease of short term and to settle it on league premiums with third persons giving them permanent right of occupancy against the landlord. The proposition is preposterous. Here, the lease of defendant No. 1 expired in 1917 and was extended by permission of the Court of Wards, which then had charge of the property, till 1317 Fasli, After the expiry of the lease defendant No. 1 became a trespasser. All sub tenants described as shikmidars, thikadars and jotedars (call them by whatever term you like) must also go with the lessee, defendant No. 1. They did net ever acquire the right to remain on the land even for a moment beyond what defendant No. I had. The title was derived from defendant No. 1, and the previous lessee, and their title extinguished also with the title of the former. Therefore, the rent-receipts in the present case do not help the defendants.

The survey entry in the Record of Rights was then relied upon; but this entry also does not help the defendants, for in respect of the Katar land the rights of the defendants have been described as quami zarait, and in respect of the land in Mauza Barah Batra the defendants Nos. 1 to 6. the lessees, are shown at holding the land as their behalf, some, in their own possession and most of it in possession of the remaining defendants. Therefore, the survey entry described the land as zerait and the bakasht of defendants Nos. 1 to 6, the lessees. It cannot in any way support the claim of the defendants. The effect of this survey entry would seem to have been nullified by the decision of this Court, dated the 27th March 1916, in a proceeding by the defendants against the plaintiff. The defendants-appellants in the present case disputed the right of the Maharaja to distrain the crops for arrears of rent describing the land as having been settled with defendant No. 1, the, lessee. The contention of the defendants was, in that case as in the present one, that they were the tenants of the land and that the defendant No. 1 was tenure-holder and consequently the distraint proceedings, which applied only to the case of cultivating tenants, were legally instituted by the Maharaja. It was held there that the cultivating tenant was Ram Bahadur Singh, lessee, who was defendant No. 2 in that case, and that the defendants-appellants in the present case, the appellants before us, could not claim to be tenants of the land as holding directly under the Maharaja. The leases in the present case were all construed as inferring only the right of cultivation ii the land in suit upon the lessees including defendant No. 1. In this view the lessee was a raiyat for a term of years, and a raiyat cannot create a tenancy right in favour of another extending his own term. For all considerations we think that after the expiry of the lease not only the lessee defendant No. 1 but all the defendants, who may have been holding the land under a settlement made by him, must be treated as trespassers Mahanth Jagarnath Das v. Janki Singh 66Ind. Cas. 337 : 1 Pat 340 :LR 49 IndAp 81 : 3 PLT 197 : 35 CLJ 506 : 43 MLJ 55 : 26 CWN 833 : (1902) MWN 410 : AIR (1922) (PC) 142 : 31 MLT 231 (PC). As the landlord is, therefore, entitled to recover khas possession of the land, the defendants are also liable for mesne profits.

The appeal must, therefore, be dismissed with costs to the plaintiff-respondent only who has contested the appeal.

Now, defendants Nos. 10, 15, 29 to 31} who are respondents in this case, say that they had in their written statement disclaimed all connections with the land in dispute and, therefore, they are not table to any waslat. Their contention is that the concluding words in the penultimate paragraph of the judgment of the learned Subordinate Judge apply to defendants Nos. 1 to 6, who had by means of a sulehnama entered into an agreement with the plaintiff for reduction of the wasilat, and do not apply to the defendants who did not contest the plaintiff''s claim. No doubt, these defendants stated in their written statement filed on the 27th of November 1915 (corresponding to Aghan 1323) that they were no longer in possession of the land. Therefore, it would seem that they are not liable for mesne profits after the institution of the suit; but it is not clear whether they were or were not in possession of the land after the expiry of the term up to the institution of the suit, that is, 1320, 1321 and 1322. The evidence on this point on behalf of the plaintiff was reserved. The defendant No. 10 (witness No. 9) examined himself and said that these defendants had given up the land from 1320. It will, therefore be open to these defendants when the plaintiff gives evidence as to the amount of wasilat, to show that they had abandoned the lands from 1320 and that they themselves were not responsible directly or indirectly for the lands not being in possession of the plaintiff during the years in suit. In any case, the other defendants who disputed the right of the plaintiff and according to the finding of the Court below kept him out of possession, are liable to the plaintiff for mesne profits of the years in suit.

Bucknill, J.

I agree.