Laley Dharnidhar and others vs Jugeshwar Mahton and others

Mohammad Noor, J.—These two appeals arise out of two suits instituted by the same set of plaintiffs for ejecting defendant 1 from two holdings under the plaintiffs situated in two different estates. The plaintiffs allege that the original raiyats of the two holdings, which have been found by both the Courts below to be non-transferable, were Santokhi Gope, Paltan Gope and Laldhari Gope (all of whom are now dead) that defendant 1 took a sale-deed of the two holdings from the widow of Santokhi Gope acting as guardian of his two sons Suba Lal Gope and Ram Sewak Gope. The plaintiffs therefore claimed that the sale of the two holdings constituted their abandonment by the raiyats (the two sons of Santokhi) and the defendants bad no right to remain on the lands. The raiyats are not parties to the suits and the plea of non-joinder was not pressed at the time of the hearing.

Defendant 1 pleaded in both the suits a custom of transferability in the village, and further contended on separate grounds in the two suits that the original raiyats did not abandon the holding. In one suit (No. 104 of 1929, out of which Second Appeal No. 1075 of 1932 arises) the ground was that as the sale was not in respect of the entire holding, a portion of the holding having been left out, there was no abandonment. In the second suit (No. 105 of 1929, out of which Second Appeal No. 1076 of 1932 arises) there was a plea that the original raiyats, namely, the two minor sons of Santokhi were still cultivating the land of the holding having taken the batai settlement of the same from the purchaser defendant 1, and therefore there has not been an abandonment in that case also. The trial Court over-ruled all the pleas of the defendants and gave the plaintiffs decrees for ejectment. It found that there was no custom of transfer-ability in the village and that though in the one case a portion of the holding was not included in the sale, nevertheless that portion was not in possession of the raiyats, and in the second the story of the original raiyat holding the land under the purchaser (defendant 1) was not established. On appeal by defendant 1 the learned Subordinate Judge, while agreeing with the trial Court that the holdings were not transferable has held that there was no abandonment of the holdings and has dismissed both the suits. In the first case he held that the original raiyats, the minors, were still in occupation of the portion of the holding which was left out from the sale, and in the second case he held that the ryots were holding as bataidars under the purchaser. The plaintiffs have appealed. I take up these two appeals separately.

Second Appeal No. 1075 of 1932, arising out of Suit No. 104 of 1929 : �

In my opinion there is no merit in this appeal, and it seems to me to be concluded by the finding of fact of the lower appellate Court, namely, that the original raiyats, the minors, were still in occupation of a portion or the holding. The holding involved is of 1 bigha 5 kathas 9 dhurs. The learned advocate for the appellants has contended that the observation of the learned Subordinate fudge does not amount to a finding that the original raiyats were in fact in possession of any portion of the holding. I do not think so. No doubt, the learned Subordinate Judge has not expressed him-self very clearly, but the effect of his conclusions is that a portion of the plot containing the gachhi and the homestead was still in possession of the raiyats. In view of that rinding this appeal must fail.

Second Appeal No. 1076 of 1932, arising out of Suit No. 105 of 1929 : �

In this appeal the holding involved is of 6 kathas only. The learned Subordinate Judge, has found that the original raiyat was cultivating the land under the purchaser defendant 1 as his bataidar. In my opinion, this finding entitles the plaintiffs to a decree for ejectment against defendant 1. The raiyats are not parties to the suit, and the only thing to be seen is whether defendant 1, who claims to be the purchaser of the holding from them, is entitled to resist the suit for ejectment against him. Ordinarily, execution of an effective sale-deed by the raiyat in favour, of a stranger will constitute an abandonment of the holding by the raiyat. If afterwards the raiyat continues cultivating the land and has; made arrangement for the payment of rent, he is not liable to be ejected provided that he has not repudiated the relationship with his landlord. In this case we are not concerned whether a decree for eejetment can be passed against the raiyat. We are concerned only with the question whether a decree for ejectment can be passed against defendant 1 who has purchased the holding from the raiyat and admits that the original raiyats have become his under-raiyats. In Kali Charan Ghosh v. Arman Bibi, (1909) 4 I C 473, where the question was whether the original raiyat himself who had sold his holding to a stranger and was cultivating the land as an under-raiyat of that stranger, could resist the landlord''s suit for ejectment, the learned Judges observed as follows:

But it appears from their written statement (the written statement referred to is the one of the original raiyats) that they have repudiated the relationship of landlord and tenant which formerly existed between them and the plaintiffs. They did not raise the pleas that their rights were not transferable and that they were willing to pay rent to the plaintiffs as before. On the contrary they pleaded that their interest was transferable, and had been transferred and so they were in occupation of the land as under-tenants of the transferees defendants 4 to 6 and not as the tenants of the plaintiff.......In these circumstances they have by their own acts and pleadings put an end to the relationship of landlord and tenant which formerly existed between them and the plaintiffs and therefore it would seem to us that the plaintiffs are entitled to eject them.

The learned advocate for the respondents has relied upon another decision of the Calcutta High Court in Madar Mondal v. Mahima Chandra, (1906) 33 Cal 531 = 3 C L J 343, where it was held that if a tenant having a non-transferable right of occupancy sold such right to third parties and obtained a sub-lease from the purchasers and remained in possession of the land and was cultivating the same, the landlord was not entitled to khas possession as against him. This case has no application to the facts of the present case, inasmuch as the plaintiffs do not want to eject the original raiyats. In fact, they are not parties to the suit and any decree in this case will not bind them. The plaintiffs want to eject defendant 1 who claims to remain on the land by virtue of a sale which he has taken from the original raiyats. The learned judges in the course of the judgment in the above case expressly stated that though the original raiyat, who was cultivating the land having taken settlement of it from the purchaser was not liable to be ejected, the purchaser was so liable. They said:

Defendant 4 (the purchaser) though he was the purchaser, did not put in any defend and he is not an appellant before us. The appeal has been presented by defendants 1 to 3 only, who are actually in occupation of the land. As regards defendant 4 there can he no doubt that he did not acquire any right by his purchase, if the right of defendants 1 to 3 was an occupancy right. The plaintiffs are therefore entitled to a decree for possession against defendant 4.

Then their Lordships held that the plaintiffs were not entitled to a decree against defendants 1 to 3. On his own showing the defendant has purchased the entire holding and the raiyats are holding the lands as his bataidars. This is an admission that the raiyats have repudiated their position as raiyats of the plaintiffs and have brought in defendant 1. This is an admission that raiyats have become under-raiyats of defendant 1. As under-raiyats they can be turned out any moment. In my opinion, the plaintiffs are entitled to a decree in this suit, and this appeal must be allowed.

The result is that appeal No. 1075 is dismissed with costs, and the Appeal No. 1076 is allowed. The decree of the learned Subordinate Judge relating to the latter appeal is set aside and that of the Munsif restored. The appellants will be entitled to get from the respondents the costs of this Court and also of the lower appellate Court. At the request of Mr. S.N. Ray I certify that the decree in Second Appeal No. 1076 of 1932 is fit for a Letters Patent appeal.