Kuldip Singh and Others vs Kumar Kamakhya Narain Singh

Kulwant Sahay, J.—This is an appeal by the defendants against a decree made by the Additional Subordinate Judge of Hazaribagh in a suit for resumption of a village named Kharika which was granted in istamrari mokarrari by an ancestor of the plaintiff who is the present proprietor of the Ramgarh Estate under a deed dated the 21st April 1865. The mokarari grant was to two brothers, Ramcharan Singh and Indranath Singh. Indranath Singh died in 1867. The present defendants are the heirs or the assigns of the original grantees.

The plaintiff''s-case is that his right to re-enter accrued on the death of Ramcharan Singh, but that the defendants continued in possession as tenants from year to year notwithstanding the determination of the original tenancy on the death of the last surviving grantee; and that this continuance of possession was with the assent of the landlord. He asserts that at the time of the preparation of the record-of-rights the defendants for the first time asserted that they had the status of permanent and heritable tenure-holders as istamrari mokarraridars. Thereupon notices to quit were issued on behalf of the landlord in the year 1915 and again in 1917. As doubts were entertained as regards the due service of these notices, another set of notices were issued in August 1919, but in spite of due service of the said notices the defendants refused to give up possession. The suit was accordingly instituted on the 1st of April 1920 for ejectment of the defendants.

The principal defence was that the original grant was a permanent and heritable grant and a mere life-grant to the original grantees; and, secondly, that the suit was barred by limitation.

The learned Subordinate Judge has held that the mokarrari grant conveyed only a life interest to the grantees and that it was not a permanent and heritable grant. On the question of limitation the learned Subordinate Judge held that the suit was not barred by limitation. He accordingly decreed the suit and directed khas possession of the village to be awarded to the plaintiff by evicting the defendants therefrom, and he also awarded mesne profits to the plaintiff.

The defendants have come up in appeal of this Court.

The nature of a mokarrari grant made by the Ramgarh Estate has been considered in a number of cases brought by the Ramgarh Estate against the hairs or assigns of various mokarraridars under similar istamrari mokarrari grants, and it is now authoritatively settled that mokarrari grants similar to the one in dispute in the present case conveyed only a life interest to the grantees and not a heritable interest. The finding of the learned Subordinate Judge on this point has not been challenged in appeal before us.

The only substantial question for determination in the case is the question of limitation. The case made by the plaintiff in the Court below was that his right of re-entry accrued on the death of the last surviving grantee, yet the heirs of the original grantees were allowed to continue in possession as tenants from year to year and that the tenancy from year to year was determined by the notices to quit served in 1915 and again in 1917 and in 1919. On behalf of the defendants it was contended that no tenancy from year to year was created and that ever since the death of the last surviving grantee they have been in adverse possession, and that the right of the plaintiff to re-enter had bean extinguished by lapse of time. The learned Subordinate Judge has found it as a fact that the defendants never paid rent for the disputed village since the death of the last serving mokarraridar Ramcharan Singh. This finding is based upon a consideration of the evidence in the case and has not been challenged on behalf of the respondent. The learned Subordinate Judge, however, was of opinion that the defendants never asserted an adverse interest. He referred to the evidence of the plaintiff''s record-keeper, Sheosahai Lal, and held that this evidence shows that the defendants were permitted by Raja Ram Narain Singh to remain in possession of the disputed village as yearly tenants and that such orders were passed by the Raja in the Sambat year 1962 or 1963; and that this was sufficient indication of an assent on the part of the landlord to the continuance of the tenancy and that such assent created a yearly tenancy and that the possession of the tenants which was that of tenants by sufferance was converted into that of tenants from year to year. I am of opinion that the learned Subordinate Judge was wrong in this conclusion. The only evidence on the point is the evidence of the plaintiff''s record-keeper, Sheosahai Lal. His evidence is in general terms. There is nothing in his evidence to show that so far as the present defendants were concerned there was any assent on the part of the landlord to treat them as tenants from year to year. The record-keeper speaks of the grant of marfatdari rent receipts to the heirs or assigns of the deceased mokarraridars, and in the present case it is clear that no rent was ever paid by the defendants. The deposition of the record-keeper, therefore, in my opinion, cannot be accepted so far as the present defendants are concerned. The order of the Raja was, according to this witness, a verbal order, and there is nothing in writing to show that such an order was passed. The witness comes to speak after the lapse of a number of years, and even, assuming that such a general order was passed, there is nothing to show that the defendants were aware of it. Moreover, a tenancy can only be created when both the contracting parties agree to the terms thereof. In the present case we find that the Ramgarh Kaj was claiming a right to resume the village on the death of the original grantees; while the heirs, on the other hand, were claiming a permanent and heritable interest. The hairs were no doubt willing to pay rent as istamrari mokarraridars, but the landlord was not willing to accept rent from them in that capacity. The parties were not ad idem and in my opinion no tenancy from year to year can be held to have been created upon the circumstances established in the present case. In 1901 the Ramgarh Raj brought a suit against Narsingh Dayal Sahu to resume a village granted under a similar istamrari mokarrari grant. This case went up to the Calcutta High Court and the decision of the Calcutta High Court is reported as Narsingh Dayal v. Ram Narain (1903) 30 Cal 883. Chakouri, son of Indranath, one of the original mokarraridars, was examined as a witness for the defendant in that case, and in the course of that deposition he had asserted_that on the death of the original mokarraridars the heirs were in possession as permanent mokarraridars. This was a clear assertion of adverse possession. Then again it appears, in 1904, the Raja made an attempt to take direct possession of the village and succeeded in getting kabuliyats executed by the tenants; but he could not take actual possession and the defendants continued in actual possession by receipt of rent from the tenants. This was also an assertion by the defendants of an adverse interest. The adverse interest, however, claimed by the defendants was the interest of a permanent and heritable tenure-holder.

The points raised in the present case are similar to those raised and decided by this Court in Hari Gir v. Kumar Kamakhya Narain Singh AIR 1924 Patna 572, Ramrachya Singh v. Kumar Kamakhya Narain Singh AIR 1925 Patna 216, Charan Mahto v. Kumar Kamakhaya Narain Singh AIR 1925 Patna 357 and Kumar Kamekhya Narain Singh Vs. Bechu Singh, . In all these cases it was held that under circumstances very similar to the circumstances of the present case, the heirs or assigns of the original mokarraridars were in possession adversely to the landlord, and that there was no creation of a tenancy from year to year as asserted by the landlord. It is not necessary to discuss the point at any length in the present case, as it is conceded by both sides that the cases referred to above cannot be distinguished from the facts of the present case. I would, therefore, hold that the possession of the defendants in the present case was adverse to the landlord since the death of the last surviving grantee, and that the suit so far as the prayer for a decree for ejectment is concerned must be dismissed.

There was, however, a claim for arrears of rent and cesses for the years 1974-1976 Sambat, and the learned Subordinate Judge made a decree for arrears of rent for those years. There is no reason why this part of the decree should not be affirmed. The decree of the learned Subordinate Judge will, therefore be modified the decree awarding direct possession to the plaintiff will be set aside, and the decree awarding rent and cesses for the years 1974-1976 will be affirmed. As regards the costs, the principal question was the question of limitation and the appellants have succeeded; they are, therefore, entitled to their costs in this Court; as well as in the Court below.

Adami, J.

I agree.