Kalap Chaudhuri and Others vs Sitab Chand and Others

Fazl Ali, J.—This is an appeal under the Letters Patent from the judgment and decree of Wort, J., reversing the judgment and decree of the Subordinate Judge of Shahabad. The facts of the case may be shortly stated thus: One Bishwanath had a non-transferable occupancy holding of 3.85 acres which he transferred on 31st January 1907 to one Rajnath.

Subsequently Rajnath transferred portions of the holding to various persons including the ancestors of the defendants. In this appeal we are concerned only with the land which was transferred to the ancestors of the defendants and which is about 18 cattas in area. It appears that on 1st November 1917 one Har Prasad Das the predecessor-in-interest of the plaintiff who was admittedly the 16 annas landlord of the village obtained a rent decree against Bishwanath the original tenant, and in execution of the decree, the holding was sold on 11th April 1918.

On 8th October 1918 Har Prasad obtained dakhaldehani. On 8th May 1923 the plaintiff having succeeded to the interest of Har Prasad brought the suit out of which the present appeal arises, for the ejectment of the defendants. The suit was decreed by the Court of first instance but dismissed on appeal by the Subordinate Judge. The learned Subordinate Judge held that the entire holding having been transferred in the year 1907, it must be assumed that it had been abandoned by the tenant and that being so, the relationship of landlord and tenant had ceased to exist as between Har Prasad and Bishwanath and the decree obtained by the plaintiff against the original tenant was a nullity and therefore not binding upon the defendants. The learned Subordinate Judge further held that the defendants having been in adverse possession of the disputed land for more than 12 years had acquired a good title to the land which was not affected by the decree obtained by the landlord against the original tenant. On these findings the learned Subordinate Judge reversed the decision of the Munsif and dismissed the plaintiff''s suit.

On appeal to this Court a question was raised as to whether the defendants were the representatives of the original tenant or not and relying upon the decision of this Court in Bhikhia Jha v. Brij Behari Singh [1917] 2 Pat. L.J. 478, Wort, J., held that they were his representatives. The reason why this question was raised was that if the defendants were the representatives of the original tenant, they would be bound by the decree in the rent suit and by the subsequent delivery of possession and holding that they were the representatives of the original tenant and therefore hound by the execution proceedings, Wort J., held that the plaintiff''s action was not barred by limitation. He accordingly reversed the decision of the Subordinate Judge and decreed the suit of the plaintiff. Mr. Sundar Lal who appears for the appellant has devoted his argument largely to the question as to whether the defendants should be regarded as the representatives of the original tenant or not and he has pointed out that the view which has been expressed both in this Court and in the Calcutta High Court that the transferee of an entire non-transferable holding is a representative of the original tenant was based upon an erroneous reading of the well known case of Dayamayi v. Ananda Mohan Roy [1915] 12 Cal. 172. There is no doubt that Mr. Sundar Lal has succeeded in showing that the report of the case as it appears in [Dayamayi v. Ananda Mohan Roy] 42 Calcutta is not quite accurate and that the report of the case which is to be found in 18 CWN 971 is more correct. Referring to this report it is clear that the question that was referred to the Full Bench was not whether the transferee of an entire non-transferable holding was the representative of the tenant, but whether a transferee of a part of such holding was his representative.

This has been pointed out clearly in Purna Chandra Kundu and Others Vs. Manobini Devi, . It appears to me therefore that the cases which were decided on the assumption that it has been held in Dayamayi''s case [1915] 42 Cal. 172 that the transferee of an entire nontransferable holding is a representative of the tenant require re-consideration; but at the same time I do not think it necessary to decide that question in this appeal as the appeal is capable of being disposed of on a different point altogether. It may be assumed that ordinarily a raiyat who has transferred the whole of his holding which is not transferable by custom may be held to have abandoned it and to have forfeited his tenancy.

The fact however remains that the landlord is not bound to re-enter and may well have recourse to the alternative remedy open to him, that is to say, he may still sue the original tenant for the rent of the holding. This is so, because a tenant cannot escape his obligation to pay rent by merely transferring his holding to another person without the consent of the landlord. In the present case a rent suit was brought in the year 1917 against the original tenant and a decree was obtained against him. The learned Subordinate Judge is of opinion that the decree was a nullity merely because the holding had been abandoned; but I am not prepared to agree with him on this point. If the tenant was still under an obligation to pay the rent, the decree obtained by the landlord cannot be regarded as a nullity.

On 11th April 1918 the lands which constituted the holding were sold in execution of the rent decree and as a result of the sale not only the right, title and interest of the judgment-debtor but the entire holding passed to the purchaser. Now if a person other than the landlord had purchased the holding at the sale, he would have acquired a good title to the entire holding and the defendants could not have defeated that title unless they proved that they had been in possession of the lands adversely to him for a period of 12 years or more from the date of the auction sale. The same principle will in my opinion apply where the landlord is himself the purchaser of the holding and his title cannot be defeated unless the defendants prove adverse possession for 12 years since the date of the auction purchase, which was in this case in the year 1918. In the present case the suit was brought in the year 1923, that is to say, within 12 years of the date of the auction sale and there cannot be any question of the defendants being in adverse poession for more than 12 years since the date of that sale.

Mr. Sundal Lal however contends that it should have been proved in this case by the plaintiff that is should have in this case by the plaintiff that one of the terms of Bishwanath''s tenancy was that the tenant could not abandon the holding at any time he liked and that he would be held liable for rent even after abandoning the holding. In my opinion however it was unnecessary for the plaintiff to show this, because Bishwanath was admittedly an occupancy tenant and the incidents of an occupancy tenancy are well known. In my opinion although he could surrender the holding with the consent of the landlord, he could not force the landlord to re-enter upon the land and escape his obligation to pay rent merely by transferring the land to a third party.

It is then urged by Mr. Sunder Lal that the decree obtained by the plaintiff in the year 1917 should be treated not as a rent decree but as a money decree only. Here also I am unable to agree with him because as I have already stated the tenant had no right of his own will and independently of the consent of the landlord to divest himself of his liability as a tenant to pay the rent and the landlord''s claim for rent was a valid one. In these circumstances the decree passed by Wort, J., seems to be correct and in my opinion this appeal should be dismissed with costs.

Courtney-Terrell, C.J. 10. I agree.

Agarwalla, J.

I agree.