Kamakhya Narain Singh vs Khalik Ahmad and Others

Kulwant Sahay, J.—This is an appeal by the plaintiff who is the proprietor of the Ramgarh estate against the decree of the Subordinate Judge of Hazaribagh dismissing his suit as against the Defendants Nos. 1, 8, 10, 12 and 13 for resumption of certain villages granted in istemrari mukarrari to two persons Rahat Hussain and his son Rahat Hussain. The mukarrari was granted by Maharaja Ramnath Singh, a predecessor of the present plaintiff, on the 15th of August 1865. Rahat Hussain died in 1868 and Iltafat in 1888. There were 76 defendants in the suit who were either the heirs or assignees of the original mukararidars.

The suit was decreed ex parts against all the defendants on the 25th of January 1922, Subsequently the ex parts decree was set aside as against the. Defendants 1, 8, 10, 12 and 13 on an application under Order 9, Rule 13, Civil P.C., ana the suit was restored so far as these defendants were concerned. The mukarrari related to five villages; but it appears that the Defendants 1, 8, 10, 12 and 13 had distinct and separate interests in some of the villages and there is no dispute that the interests of these defendants were separate from the interests of the other defendants. The learned Subordinate Judge has tried the suit in the presence of these defendants and has dismissed the suit as against them. The present appeal is, therefore, confined to the interest of the Defendants 1, 8, 10, 12 and 13 in the villages granted in mukarrari.

The chief defence was that the suit was barred by limitation, and the only question for consideration in this appeal is whether the plaintiff''s claim so far as these defendants are concerned is barred by limitation.

It is conceded that the original mukarrari grant created only a life interest in favour of the grantees. It follows, therefore, that on the death of the surviving grantee Iltafat Hussain in 1888, the tenancy came to an end and the possession of the defendants after the death of Iltafat Hussain must be considered as possession of trespassers and adverse to the interest of the plaintiff. The defendants, however, did not claim an absolute interest by adverse possession but only a limited interest as tenants. It is clear, therefore, that in the absence of other circumstances which would save the plaintiff''s right from the bar of limitation, the plaintiff''s claim must be held to be barred after the lapse of 12 years from the death of the last surviving grantee.

The contention of the plaintiff, however, is that the position of the defendants after the death of the last surviving mukarraridar was that of tenants from year to year and that, therefore, limitation did not begin to run until this yearly tenancy was determined by a proper notice to quit. The plaintiff points out that such notices were given to the defendants in 1915 and again in 1917 and as doubts were entertained as regards the proper service of those notices, fresh notices were given in September 1919, calling upon the defendants to give up possession at the end of the Sambat year 1976. As the notices were not complied with, the present suit was instituted on the 22nd of April 1920.

The question for determination, therefore, is whether the position of the defendants with whom we are now concerned was that of tenants from year to year, A tenancy from year to year can be created either by contract or by operation of law. Admittedly there was no express contract between the parties. It is contended, however, that such a tenancy was created by acceptance of rent from the defendants and by assent of the landlord to the defendants continuing in possession. The acceptance of rent relied upon by the plaintiff wag the realization of rant by the mortgagees of the plaintiff. It appears that on the 25th of March 1896 Mohant Bishundas and Ghanshyam Das the mortgagees of the plaintiff instituted two suits against the present defendants.

One was a suit for arrears of rent for the Sambat year 1950-52 (1893-95), in respect of one of the mauzas, Bhadial, comprised in the mukarrari, and an ex parte decree was passed on the 27th April 1896. The other suit was for the arrears of rent for 1949-52 in respect of rent of another village, matiza Mahesa. This suit was contested and a decree was passed on contest on the 27th May 1896.

The pleadings of the parties in these two suits have not been printed. We have only got extracts from the register of suits (Exs 1 and 1a), which do not give the allegations of the parties. We have, however, got the judgment in the second suit which is marked as Ex. F.

It appears from the judgment that the plaintiffs i.e. the mortgagees claimed rent from the defendants as mukarraridars, and the defence of the defendants in the second suit was that under the terms of the deed of mortgage the mortgagees could recover rent only from the original grantees of the mukarrari. They contended that the mortgagor of the plaintiffs in the rent suit; did not recognize the defendants as his tenants and that unless the mortgagees were empowered by the mortgagor to realize rents from the defendants who were the heirs of the original grantees of the mukarrari, the suit did not lie.

The learned Deputy Collector, however, did not decide the question raised by the defendants. He held that the previous ex parte decree operated as res judicata and it was not open to the defendants to question the right of the plaintiffs to recover rent from them. It is contended on behalf of the appellant that the realization of rent under that two decrees by the mortgagees created the relationship of landlord and tenants and that it amounted to an acceptance of rent from the defendants which had the effect of creating a tenancy from year to year.

In my opinion this contention is not sound. In order to create a tenancy from year to year the acceptance of rent by the landlord must be on payment of such rent by the tenant [who admits his position to be that of a tenant from year to year. In other words the parties must be ad idem. (Both parties must be of one mind a? regards the nature of the tenancy. If, however, the landlord claims to treat the tenants as tenants from year to year but the tenants assert a permanent tenancy and do not admit their position as tenants from year to year'' and pay rent, the yearly tenancy cannot be established. The payment of rant by the tenants would be in assertion of their right as permanent tenants. As permanent tenants they are admittedly liable to pay rent, and if they pay rent with an assertion of permanent tenancy the landlord cannot by mare acceptance of such rent treat the tenants as tenants from year to year. I am, therefore, of opinion that the realization of rent by the mortgagees under the decrees obtained by them did not hive the legal effect of converting the tenancy by sufferance into a tenancy from year to year.

Let us now see if a tenancy from year to year was otherwise created by the assent of the landlord to the defendants continuing in possession. Here also it is necessary that the assent mast be to a continuance of possession as tenant from year to year. Where, however, the tenant claims to be in possession not as a tenant from year to year but as a permanent tenant the landlord cannot by his mere assent to the tenant''s continuing in possession convert the tenancy as one from year to year.

Moreover, in the present case, there is absolutely no evidence to show that the plaintiff ever assented to the defendants'' continuing in possession as tenants. It appears that in 1889 a suit was instituted by Maharaja Nam Narain Singh, predecessor of the present plaintiff, against Iltafat Hussain one of the orginal mukarraridars for arrears of rent for the period 1942-45 Sambat. This suit was instituted on the 1st April 1889 as will appear from the plaint Ex. B. Ex. 0 is the order sheet of this suit and it appears on reference to this order-sheet that the summons could not be served upon the defendant as he was then dead. We know from the evidence that Iltafat Hussain died in 1888. The plaintiff in that rent suit took time on three occasions to substitute the heirs of the deceased defendant, but ultimately no substitution was made and the suit was dismissed for default on the 3rd August 1889. The evidence of the defendant; 8, who was examined as the first witness for the defendants, is that after the dismissed of this rant suit he apparel before Raja Nam Narain Singh and requested him to recognize him (the defendant) and the other heirs as mukarraridarsanl to accept the mukarrari rent from them. The Raja, however, refuse. To do so and told him that as both the mukarraridars were dead the heirs must give up possession. This evidence of defendant 8 is supported by the fact that the rent suit instituted in the year 1839 WAS allowed to be dismissed for default of not bringing the heir on record and by the fact that since then no rent has ever been realized either by the plaintiff or by his predecessor in interest.

There is thus no evidence of any act on the part of the plaintiff or of his predecessor which may give rise to an inference of assent on the part of the plaintiff or that of his predecessor to the continuance, of the defendants in possession as tenants. In my opinion, therefore, no yearly tenancy was created and time began to run against the plaintiff or his predecessor-in-interest from the death of the last surviving grantee, and the suit, having been instituted much beyond the period of limitation, is clearly barred by limitation.

Assuming, however, that a yearly tenancy was created by the realization of rent by the mortgagees it is contended on behalf of the defendants that that yearly tenancy was determined by a notice to quit served upon them in the year 1904. In the Court below the plaintiff did not admit that any notice was issued or served in 1904. The learned Subordinate Judge, however, found it, as a fact, that a notice was issued and served, and this finding is not challenged before us. Now, the notice issued in 1904 required the defendants to give up possession on the expiry of the Sambat year 1961, and if the yearly tenancy came to an end in the year 1961 the suit ought to have been instituted within twelve years from the determination of that tenancy. The suit was admittedly instituted beyond 12 years from that date.

It is, however, contended by the appellant that there was waiver of the notice of 1904 by the subsequent notice issued in 1915 and that time began to run on the determination of the tenancy by the notice issued in 1915. The defendants do not admit the service of the notice in 1915, and the fact that the plaintiff himself was in doubt as regards the proper service of that notice, as well as the notice issued subsequently in 1917, lends support to the defendant''s contention.

However, assuming that the notice was properly issued and served in 1915, the question is whether it amounted to a waiver of the notice of 1904. A notice is waived u/s 113, Transfer of Property Act, with the express or implied consent of the person giving it showing an intention to treat the lease as subsisting. Ill. (b), Section 113 shows that, if the tenant remains in possession after the expiry of the notice, and a second notice to quit is given, the first notice is waived, but this presupposes that there was an admitted tenancy from year to year. The doctrine of waiver of notice to quit would not apply where the landlord treats the tenant as a tenant from year to year and the tenant asserts a permanent tenancy. Moreover, a waiver is an act on the part of the person pleading the waiver showing an intention to treat the tenancy as subsisting. When there is a denial of the notice of 1904 on the part of the plaintiff it cannot be said that he had the intention to treat a determined lease as still subsisting. I am of opinion that the learned Subordinate Judge was right in holding that the plaintiff cannot rely on the waiver of notice of 1904 so as to give rise to a fresh period of limitation.

As regards the question as to whether the defendants acquired an interest as permanent tenants by adverse possession, I am of, opinion that the evidence on the record goes to show that there was an assertion of an adverse interest of a limited nature, viz., that of a permanent tenant. Such assertion was made after disposal of the rent suit of 1889 and again when the mortgagees instituted their suit for rent, and by the fact of the defendants withholding payment of rent up to the date of the suit, because the plaintiff refused to recognize them as, permanent tenants.

The questions raised in this appeal were raised in the case of Chandra Mahto v. Kumar Kamakhya Narain Singh AIR 1925 Pat 357, who is the plaintiff in the present suit, and I adhere to the view expressed by ma therein.

The learned Subordinate Judge has, in considering the question as to whether there was ratification by the plaintiff of the recognition of the defendants as tenants by the mortgagees, referred to the certified copies of evidence of Bakshi Radhika Das and of James Bowman (Exs. H and H-1) given in the previous suit instituted by a predecessor of the present plaintiff, against Narsingh Dayal Sahu, the plaint whereof is marked Ex. G. That was a test suit instituted by Raja Earn Narain Singh against the. representative of another mukarraridar, holding under an istemrari mukarrari similar to the one granted to Iltafat Hussain and Eahat Hussain, and the question was as to the character of the tenancy, viz., whether the tenancy created under the istemrari mukarrari was a life tenancy or a permanent tenancy.

It is contended on behalf of the appellant that these two depositions (Exs. H and H-l) are not admissible in evidence. The learned Subordinate Judge was of opinion that, they were admissible in evidence u/s 18, Evidence Act, and I am disposed to agree with him. These depositions were admitted in evidence without any objection to their admissibility. They are, moreover, admissible in order to show that the case now sought to be made by the plaintiff was inconsistent with the case which the predecessor of the plaintiff tried to make on a previous occasion. However, there is sufficient evidence on the record in favour of the defendant, apart from the documents Exs. H and H-1, and even if they are excluded such exclusion cannot affect the decision of the case.

I am, therefore, of opinion that the decision of the learned Subordinate Judge was right and this appeal ought to be dismissed with costs.

Ross, J.

I agree. (The judgment then narrated the facts and proceeded). Three points were argued in appeal.

(1) The proprietor of the Ramgarh estate executed a zarbharna mortgage of the villages in suit and other villages in favour of Gossain Ghanshyam Das and Mohunt Bishun Das from 1891 to 1896. Two suits were brought in 1896 for arrears of rent by the mortgagees against the heirs of Iltafat Hussain, the survivor of the two grantees, for the years 1949 to 1952 and 1950 to 1952 Sambat. One of these suits was decreed ex parte and the second was decreed after contest, the basis of the decision being ''that the ex parte decree operated as res judicata. The decrees were satisfied by the judgment-debtors. On this it is argued that the successors of the original grantees having remained in possession on the expiry of the lease, they were tenants on sufferance and, by reason of payment of rent to and acceptance of rent by the mortgagees, they became tenants from year to year, and that that tenancy was not determined until notice to quit was given, and therefore the respondents were liable to be ejected.

(2). The second point urged was that no title by adverse possession has accrued to the defendants: first because no assertion of adverse title was made to the knowledge of the proprietor, and second, because during the subsistence of the tenancy from year to year no adverse title to a higher interest could be asserted.

(3). In the third place it was argued that, even if notice to quit was given in 190i, the plaintiff''s suit was not barred by limitation, because a fresh notice was given in 1915 and therefore the first notice was waived and time would only begin to run from the date of the second notice.

In dealing with the first point it is necessary to ascertain precisely what the position of the successors of the original grantees was when the lease expired. It has been found by the learned Subordinate Judge, and the finding is not contested, that the grant to Rahat Hussain and Iltafat Hussain was a grant for their lives. The lease, therefore, terminated in 1883, when the survivor of the grantees died.

A tenant on sufferance is one who entered by is lawful demise or title, and, after that has ceases, wrongfully continues in possession without the assent or dissent of the person next entitled.

The successors of the lessee did not enter by a lawful demise or title and were not tenants on sufferance, but trespassers, and Section 116 Transfer of Property Act, has no application: Ram Rachhya Singh and Others Vs. Kamakhya Narain Singh, and Charan Mahton v. Kumar Kamakhya Narain Singh AIR 1925 Pat 357 What, then, is the evidence to show the creation of a new tenancy in favour of the defendants? A tenancy from year to year may be created by express agreement between the parties or may arise by implication of law. Here there was admittedly no express agreement. A tenancy from year to year will be implied from facts showing an intention to create it. Now, was there on either side, in the present case, an intention to create a yearly tenancy? The pleadings in the mortgagees'' suits have not been printed, but it appears from the judgment under appeal that the mortgagees sued the heirs of the deceased mukarraridars for arrears of mukarrari rent. The defence was that, after the death of the survivor of the mukarraridars, the defendants had tried to persuade the proprietor, through whom the mortgagee claimed, to recognize them as tenants; but he had refused to do so or to accept rent from them, and that the mortgagees were expressly forbidden by the terms of their deed to recognize the heirs of the deceased mukarraridars as tenants and that therefore, so long as the proprietor did not recognize the heirs as tenants, the relation of landlord and tenant between the mortgagees and the defendants did not exist. The learned Subordinate Judge also states that the decrees were passed against the heirs as mukarraridars of the village in suit. On neither side in that litigation was there any intention to create or admit a tenancy from year to year.

Even in the case of tenants on sufferance from whom rent is accepted the presumption that a tenancy from year to year has been created can be rebutted. There was an assertion by the mortgagee-plaintiff that the defendants were liable for rent as heirs of the holders of a mukarrari tenure. There was a denial by the defendants that they were liable to pay rent to the mortgagee because his mortgagor refused to admit their mukarrari title. I do not think therefore that on these facts it can be inferred from the satisfaction of the decree for rent by the defendants that there was any intention to create a tenancy from year to year on the part of the mortgagee or to accept such a tenancy on the part of the judgment-debtors. The satisfaction of the decrees cannot, in my opinion, alter the position, which the defendants have taken up and have all along maintained.

(2) On the second point it must be taken that from the year 1888, ,the defendants or their predecessors were in possession of the village in suit as trespassers. The evidence of defendant 8 is that two or three months after the dismissal of a suit for rent which was brought by the proprietor against the original lessee, and was'' dismissed as it was found that the lessee was dead and no substitution was made in his place, he went to Raja Nam Narayan Singh and requested him to recognize them as mukarraridars and to accept mukarrari rent. The Raja refused the application and told him that as both the mukarridars were dead, they must give up the villages. Defendant 8 said that as the mukarrari was permanent they were not ready to give up possession of the villages to him. The learned Subordinate Judge has believed this evidence and no reason was shown for distrusting it. The fact that the suit for rent against the original lessee was allowed to drop shows that the proprietor was not prepared to recognize his heirs, and the fact, that the heirs continued in possession, shows that they were not prepared to surrender the villages. In this state of fasts the evidence of this defendant seems credible and there is no reason to disbelieve it. The same assertion was repeated in the defence to the mortgagees'' suits for rent and again in 1911 when the Record-of-Rights was required. I would, therefore, hold as a fact that an assertion of hostile title to a limited interest was made to the knowledge of the plaintiff and his predecessors from 1888 onwards and that these assertions were made by persons who were trespassers. By lapse of time they have acquired a title to a mukarrari interest by adverse possession.

(3) In view of this conclusion the third point becomes immaterial; but, as it was debated I shall deal with it. The notice in 1904 was not questioned in appeal. I see no reason to doubt the evidence of the plaintiff''s witness Bishun Prasad who proved that he posted the notices in 1915 and received the acknowledgment from the, post office. The presumption is that if a letter properly directed, is proved to have been posted, it reached its destination and was received by the person to whom it was addressed. The defendant Abdul Guny said nothing in his examination-in-chief to negative the plaintiff''s evidence on this point and did not deny his signature on the acknowledgment. 16 is true that in answer to an unwise question put in cross-examination he denied receipt of any notice in 1915, 1917 or 1919; but no weight can be given to this statement. I would hold, therefore, that notices to quit were given both in 1904 and in 1915 and the question is whether the issue of the latter notice waived the former.

The learned advocate for the appellant? relied, upon Ill. (b) Section 113, Transfer of Property Act and contended that as the defendants remained in possession after the first notice expired, their consent to the waiver of that notice must be implied. Now the notice was a notice to a tenant from year to year to quit the, tenancy. The defendants never admitted that they were tenants from year to year. It is impossible, therefore, to infer their consent to the waiver of the notice from the mere fact that they remained in possession. The illustration deals with the case of a lessor giving notice to a lessee i.e., it assumes that the parties are adidem on the matter of the lease, and if the lessee remains in position session, it may be fairly inferred that he consents to the waiver of the notice but where the parties are maintaining mutually exclusive positions one asserting a tenancy from year to year and the other assuring a permanent interest in the land it Seems to me idle to contend that any waiver by implied consent can arise.

As was pointed out by Das, J. in First Appeal No. 234 of 1920, the possession of the defendants was an offer to to pay rent on the footing that they had a permanent lease of the village and not an offer to accept a lease from year to year. This is not a question of limitation, where the plaintiff''s position is accepted and met by a plea of lapse of time. It is a question of waiver and as the parties where never ad-idem as to the tenancy, in my opinion, the plea of waiver fails. On this ground also, even if the defendants had been tenants from year to year, the suit would be barred by Article 139, Schedule 1, Limitation Act.

On all these grounds I think that the appeal must fail and be dismissed with costs.