Johabaj Khan vs Srikrishna Dey and Others

Dhavle, J.—The question in this appeal is whether the landlord, a Lakhiraj bajiaftidar in a temporarily settled estate in Balasore, is entitled to eject a chandnadar after service of a notice to quit. The plaintiffs'' title as landlords was challenged by the defence, but has been concurrently found against by the trial Court and the District Judge on appeal, and there is no further dispute about it. The defence also denied service of notice, but this too has been concurrently found against the defendants appellants, and there is no further dispute about it. The defendants have been recorded in successive Record of Rights (commencing with the Provincial Settlement) as chandnadars, and for the current settlement their rent has been raised from Re. 1 to Re. 1-4-0 (apparently in accordance with para. 126 of Mr. Dalziel''s Final Report on the Revision Settlement of Orissa, 1922-1932). The trial Court decreed the suit on the ground that the landlord prima facia has a right to all the lands included in his mahal or tenancy, that the defendants have totally failed to show that by custom or usage they are entitled to remain on the land against the will of the landlord, that they are tenants at will, and that their rights have been terminated by the notices served on them.

The District Judge on appeal found that there was absolutely no reliable evidence of any local custom or usage by which the defendants, who had appealed to him; could acquire any permanent right, and after negativing the contentions of permanency and of a right of occupancy that were urged before him on the authority of A.M. Dunne v. Nobo Krishna (1890) 17 Cal 144, and Section 6, Act 10 of 1859, upheld the decree of the trial Court. There was then a second appeal to this Court, and James, J., before whom it was first placed, considered, doubtless in view of the general importance of the question raised, that the matter should be heard by a larger Bench. The appeal thus came before Fazal Ali and Varma, JJ., who were of opinion that the view taken in 1925 by Das J., (sitting with Foster J.,) in Kedar Nath Mullick v. Bikal Prusti 1 CLT 5, and in Krishna Charan Mahanty v. Punai 1 CLT 8, that the whole onus lies upon the chandnadar who resists the landlord''s action for ejectment to establish a right to remain on the land either under contract or under custom requires consideration by a larger Bench in view of the intention and scheme of the Orissa Tenancy Act, and of certain observations in later decisions. The case has accordingly been placed before us for decision.

Now, there can be no doubt or controversy that in an action of ejectment, when the defendant is admittedly in possession of the land in dispute, the onus is initially upon the plaintiff to prove his title thereto. It is also clear that when the plaintiff has proved his title as landlord the burden shifts to the defendant, if he claims to be a tenant to prove that the tenancy is not precarious but entitles him to continue in occupation. A chandna tenancy, as will be seen presently, is an essentially non-agricultural tenancy, and if nothing further were known about it, the tenant will have to be considered as holding from year to year, and liable to be ejected by a proper notice to quit. In an action of ejectment from homestead land decided before the passing of the Bengal Tenancy Act, in Prosunno Coomaree Debea v. Sheikh Button. Bepary (1877) 3 Cal 696, Garth, C, J., said at p. 699:

The truth, is, that the terms of a holding, as between landlord and tenant, must always be matter of contract, either expressed or implied, If they enter into an express agreement of tenancy either written or verbal, such agreement, generally defines the terms of the holding. If on the other hand, a tenant is let into possession without any express agreement, and pay rent he becomes a tenant at will, or from year to year or, in other words, holds by the landlord''s, permission upon what may be the usual terms of such a holding by the general law, or by total custom, and in such a case, be is of course liable to be ejected by a reasonable notice to quit. Occasionally there are local customs by which special terms and incidents are engrafted upon the contract of tenancy; but the existence of the custom in such cases must be a matter of proof and no Judge has a right to act upon such customs unless their existence is duly established. In this case no such custom is even suggested and as there was no express agreement of tenancy and no evidence of its origin, the defendants must be considered as holding from year to year, and liable to be ejected by a proper notice to quit.

In such circumstances the chandnadar without an express agreement, could only resist the ejectment by proving a custom entitling him to continue in occupation. As Sir Lawrence Jenkins observed in delivering the opinion of the Judicial Committee in Seturatnam Aiyar v. Vankatachela Goundan 1920 PC 67 in an action of ejectment from ryoti land brought by a Government pattadar

permanence is not a universal and integral incident on an under-ryot''s holding; if claimed it must be established. This may be done by proving a custom, a contract or a title, and possibly by other means.

It was also pointed out in that decision that if this is not established, the defendant who does not any longer dispute the plaintiffs''s title or the notice by which he purported to terminate the defendant''s tenancy and who, according, to the Record of Rights holds under, if not from, the plaintiff must fail, unless as required by Section 101, Evidence Act, he proves the existence of a right to continue in occupation of the land. In actions of this kind it is for the tenant defendant to show why the landlord may not recover his property, and as Lord Hobhouse said in Secretary of State v. Luchmeswar Singh (1889) 16 Cal 223,

It is not the business of the plaintiff to explain the possession; it is the business of the defendants to show that it leads to the inference of a perpetual tenancy,

or it may be added of a tenancy that cannot be terminated by a notice to quit at the will of the landlord. Mr. Manohar Lal who appears for the landlords-respondents has also brought to our notice another Privy Council decision, Nainapillai Markayar v. Ramanathan Chettiar 1924 PC 68, which was further referred to by Das, J., in the decisions of 1925 and in which the same view was thus expressed.

It cannot now be doubted that when a tenant of lands in India, in a suit by his landlord to eject him from them, sets up a defence that he has a right of permanent tenancy in the lands, the onus of proving that he has such right is upon the tenant.

It is therefore beyond question that the onus at this stage would lie upon the tenant, but this is by no means an end of the matter. For clearly the position must be further examined in the light of the status of the chandnadar under the Orissa Tenancy Act. As to the origin and nature of the chandna tenancy, there is an oft-quoted passage from Maddox''s Report on the Settlement of Orissa (para, 327) which says:

Tenants other than the khushbash or respectable thani and resident raiyats have always paid rent for their homestead lands. In the case of the cultivating classes such lands were generally part of the pahi holding, but the shopkeepers, artisans, and labouring classes, who having no arable land in the village, pay rent for homestead lands only, are called chandnadars'' and their tenure chandna pahi raiyats also, who having their home in one village hold also house or homestead in other, are sometimes known as chandnadars of the latter village.... At the last settlement chandnadars were given leases securing to them fixity of rent for the term of settlement, and the incidents of the tenure do not materially differ from those of thani raiyats (which are found in para. 320 of the Report) except that they are governed by the Contract Act and not by Act 10 of 1859.

This points to two classes of chandnadars corresponding to Clauses 1 and 2, Section 236, Orissa Tenancy Act, as was said by James, J., in Chintamoni Bout v. Sriram Chandra Kar 1984 Pat 422, a decision to which I was a party Incidentally, Mr. Manohar Lal points out that the term "chandnadar" does not occur in the first clause of the section; but an actual instance of such a tenancy was dealt with by Rowland, J., in Santan Sahu v. Sahu 1988 Pat 92. The second class of chandnadars, shop-keepers, artisans, and labouring; classes who, having no arable lands in the village pay rent for their homestead lands only, now falling within Clause 2 of the, section, were essentially non-agricultural tenants, and were therefore at first excluded from the protection given to agricultural tenants by the Rent Act of 1859 and its modifications which were in force in Orissa down to 1913. The assets (as they are commonly called in revenue and other settlements) of such tenancies were however as they still are included in the amounts which the proprietors have to collect and on which their revenue is assessed. For the first time the Orissa Tenancy Act of 1913 includes chandnadars in an agricultural Tenancy Act by providing in Section 4 that there shall be for the purposes of this Act, the following classes of tenants, namely,

(1) tenure holders, ... (2) raiyats, (3) under raiyats, ... (4) chandnadars, ... and the term chandnadar itself being defined in Section 3(3) of the Act as meaning a person holding land which has been, recorded as chandna in the course of a settlement of land revenue and for which a rent has been fixed for the term of that settlement; and also the successors in interest of such person.

Though the chandnadar is thus a tenant for the purpose of the Act, Clause 2, Section 236, lays down that:

Save as otherwise expressly provided in this Act, the incidents of the tenancy of a chandnadar shall be regulated by local custom or usage and his rent shall be liable to re-assessment on each revision of a land revenue settlement.

General expressions, like the incidents of a tenancy," sometimes lead to difficulties, as actually happened'' under S.181, Ben. Ten. Act, in Mohesh Majhi v. Pran Krishna Mandal (1905) CriLJ 138 and Upendra Nath v. Ram Nath (1906) 33 Cal 630, decisions which were disapproved by the Privy Council in Anup Mahto v. Mita Dusadh 1984 PC 5. At the same time it would be surprising, if the landlord''s right to eject the tenant or the corresponding liability of the tenant to ejectment--if it is to arise in any circumstances at all--should in an agricultural tract be excluded from the incidents of the tenancy; and the Orissa Tenancy Act shows clearly enough that this right or liability was regarded as one of the incidents of tenancies. For the three classes of tenants that are mentioned along with chandnadars in Section 4 of the Act as tenants for the purposes of the Act are all governed by specific provisions in the Act as regards ejectment, and in more than one instance the matter is expressly dealt with as an incident of the tenancy. Thus, Section 11 which occurs in the chapter relating to tenure-holders and provides that a holder of a permanent tenure shall not be ejected by his landlord, except on the ground.....is the first section in a bundle of sections headed "Other incidents of tenures". Section 21 which provides that a raiyat holding at a rent or rate of rent fixed in perpetuity shall not be ejected by his landlord except on the ground ... is described in the margin as "incidents of holding at fixed rates". Section 29 which gives "protection from eviction, except on specified grounds" by providing that "an occupancy raiyat shall not be ejected by his landlord from his holding, except in execution of a decree for ejectment passed on the ground....." occurs in a bundle of sections headed "Incidents of Occupancy Right". Other sections governing and restricting the ejectment of tenants are Section 52 which provides that

a non-occupancy raiyat shall, subject to the provisions of this Act, be liable to ejectment on one or more of the following grounds; and not otherwise....

and Section 57 which impose "Restrictions on ejectment, of under-raiyats" by providing that "an under-raiyat shall not be ejected by his landlord except ...". For the ejectment of chandnadars, regarded as an incident of the tenancy, we have first to look to express provision in the Act and than to local custom or usage. The only express provision to which our attention has been drawn is found in Section 74, which provides that:

When a tenant is a permanent tenure-holder, a bajiaftidar, a raiyat holding at fixed rates, a chandnadar or an occupancy raiyat, he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof and the rent shall be a first charge thereon.

This is only a negative provision and saves the chandnadar, along with tenants possessing substantial interests and ranging from permanent tenure-holders to occupancy-raiyats, from ejectment for arrears of rent, unlike the other tenants, dealt within Section 75 as regards ejectment, on this ground, and In Sections 52 and 57 as regards ejectment generally. The landlord''s right to eject a chandnadar is thus, Unlike his right to eject other classes of tenants, not fully dealt within the Act, but has been left, subject to Section 74, to be regulated by local custom or usage. At the same time we do know from the Act that a chandnadar has his rent fixed for the term of the current Land Revenue Settlement, that this rent is liable to reassessment on each revision of such a settlement, that the term chandnadar includes the successors-in-interest of such person, and that the interest of a chandnadar is not extinguished by a suit, decree and execution for arrears of rent, but passes to the auction-purchaser in execution, like the interests of tenants down to occupancy raiyats. These are clear indications of some degree of permanence attached to a chandna tenancy under the Act; indeed the settlement authorities who investigated the permanent or precarious character of these tenancies at the last settlement came to the conclusion that the mere fact that the word ''istamrari'' is not found in the entry of a chandnadar''s status should be taken to imply that he is a mere tenant-at-will (see para. 63 of Mr. Dalziel''s Report). As was pointed out by James, J., in Chintamoni Bout v. Sriram Chandra Kar 1984 Pat 422, the view that a chandnadar is a mere tenant-at-will is inconsistent with Sections 74 and 232(1)(c) of the Act. Mr. Manohar Lal has urged that though u/s 74 the chandnadar may not be ejected for arrears for rent, there is nothing in the Act to save him from ejectment on other grounds or to prevent the landlord, in the absence of proof of local custom or usage to the contrary from ejecting him without giving any reason at all. To allow the latter however would render''s. 74 nugatory; and as to the former, it must be borne in mind that it was one of the objects of the Tenancy legislation in these parts to give adequate security to the tenants in the enjoyment of their existing rights, both statutory and customary. As the Orissa Tenancy Act makes chandnadars tenants for the purposes of the Act and leaves the incidents of their tenancies generally to be regulated by local custom or usage while expressly providing for the grounds on which tenants of all other classes may be ejected, it, should Seem to have been the intention of the legislature to allow the ejectment of chandnadars, in those cases only in which the landlord is supported by local custom or usage; This is the view that Fazl Ali and Varma, JJ., were inclined to take. The scheme of the Act suggests, as the learned Judges observed, that it could never have been contemplated by the legislature that a chandnadar should be in a worse position than even a non-occupancy raiyat as regards his liability to ejectment. Clause 2, Section 236 does not itself indicate whether the local custom or usage regulating the ejectment of a chandnadar is to be proved by the landlord or by the tenant; but having regard to the status of the chandnadar as gathered from the definition and his express inclusion in Sections 4 and 74, and to the fact that all other tenants under the Act are protected from eviction except on specified grounds, the clause ought, in my opinion to be taken to provide in effect that while the landlord is not entitled to eject the chandnadar for arrears of rent, his right to eject him on other grounds shall be regulated by local custom or usage and will only be available so far as is permitted by local custom or usage. The onus that shifts in ordinary cases to the tenant when the landlord suing for ejectment proves his title as such thus shifts again to the landlord in view not only of the way in which the Act has dealt with his right to eject by confining it to specified grounds in the case of all other tenants but also of the protection which the Act was designed to give to the chandnadar together with the measure of permanence expressly conferred on him, especially by Section 74 of the Act. This aspect of the matter was not considered by Das, J., when in concurrence with Foster, J., he remanded Kedar Nath Mullick v. Bikal Prusti 1 CLT 5 and Krishna Charan Mahanty v. Punai 1 CLT 8, for a reconsideration of the evidence after throwing the onus of proving local custom or usage on the defendant in accordance merely with the general proposition repeatedly laid down by the Privy Council. For these reasons I am unable to accept the view of Das, J. as a correct treatment of the chandnadar in the matter of ejectment under the Orissa Tenancy Act. In my opinion the landlord is not entitled to eject the chandnadar except when he proves local usage for custom in support.

It is curious to note that in para. 4 of the plaint the landlords stated that the defendants were in possession of the disputed property as chandnadars'' tenants-at-will and from year to year and had no permanent right "according to law and local usages" over it and were bad tenants, wherefor the plaintiffs gave them notice to quit. The decision of the case must however rest not on whether the plaintiffs undertook to discharge the burden of proving local usage in support of the ejectment--as a matter of fact the only evidence that was given on the point was (as the lower Courts have said) a statement obtained from one of the tenants defendants that he cannot say if chandna tenants can be ejected at the will of the landlord--but on whether it was for the landlords to prove a local custom or usage in support of the ejectment claimed or for the chandnadars to prove a local custom or usage to defeat the suit. In my opinion the former is the true position.

I would accordingly allow the appeal and dismiss the suit with costs in all Courts.

Courtney-Terrell, C.J.

I agree.

Agarwala, J.

I agree.