Mt. Banarashi Agarwall vs Sankarlal Agarwalla and Another

Deka, JJ.—This is an appeal on behalf of the plaintiff who brought a suit against the defendants for realisation of rent for certain premises, for the Sambat years 2006, 2007 and 2008 at the rate of Rs. 751/- per year and the total claim was valued at Rs. 2253/-. The plaintiff''s case was that she is the widow of one Rameswar alias Mongilal Agarwalla, since deceased and that she held the land in suit measuring about 2 bighas 9 lechas and 9 dhurs tinder the Gauripur Raj Estate, and that she also owned a shop house with adjoining kitchen and latrine on that land which the defendants had taken on lease along with the premises from the plaintiff as a monthly tenant on the stipulation to pay a consolidated rent of Rs. 751/- per year. She further pleaded that in pursuance of that arrangement, the defendants were In occupation of the premises in suit running a firm under the name and style of "Chunilal Narsingdas" and that the defendants were in arrears of rent from the year 2006 Sambat to 2008 Sambat for which the present suit has been brought.

The defendants denied that there was any relationship of landlord and tenant between the parties; but on the other hand, they pleaded that they were yearly tenants of Sewchandrai Chirania, since deceased, who was the father-in-law of the plaintiff and they had paid the rents for the years upto 2007 Sambat to the said Sewchandrai Chirania while he was alive and had paid rents for the Sambat years 2008 and 2009 to his widow Dhapi Agarwallani and his minor sons Punamchand and Hulaschand at the rate of Rs. 375/- per year which was the stipulated rate. The defendants admitted to be in possession of the said premises since the Sambat year 2003 and to have paid the rent upto the year 2009 Sambat.

The learned Subordinate Judge, who heard the suit, found in favour of the plaintiff and held that there was relationship of landlord and tenant between the parties and that the defendants were in arrears of rent as was alleged by the plaintiff and he passed a decree in her favour for a sum of Rs. 2253/- against the defendants with costs on contest. The defendants preferred an appeal in the court of the learned District Judge, Lower Assam Districts, who, by his order dated 19th December, 1955 set aside the decree passed by the learned Subordinate Judge and dismissed the plaintiffs suit for rent mainly on the ground that it was not proved that there was relationship of landlord and tenant between the parties. He directed the plaintiff to bring a proper suit for declaration of her title, if so advised. The learned District Judge did not advert to other issues in the suit, but decided in appeal only what was the subject matter of Issue No. 2, as framed by the trial court.

3a. It may be noted in this connection that the plaintiffs case was that she got the land and houses in suit as a gift from her husband conveyed by Ext. 7 a registered document dated 1st July, 1922, and that by Ext, 6 a registered power of attorney dated 21st January, 1935, executed in favour of her father-in-law Sewchandrai Chirania, she entrusted him with the management of the said property, situated at Gauripur. It has not been sought to be argued in this case that these documents are either not genuine or that they had not been given effect to. It is neither anybody''s case that the plaintiff had any other property at Gauripur besides the properly in suit in respect of which she got her name registered in the records of the Gauripur Raj Estate. The learned District Judge, while discussing about the existence of the power of attorney, executed in favour of Sewchandrai Chirania by the plaintiff found that it was a fact that, the defendants were injected into the premises by Sewchandrai Chirania, but whether he acted in so doing on his own behalf or as a constituted attorney of the plaintiff was the question. The learned District Judge, while referring to the relevant passages in the judgment of the learned Subordinate Judge, observed that the presumption as to the settlement on behalf of the plaintiff by Sewchandrai Chirania could indeed have been drawn if the title of the plaintiff to the premises in suit was undisputed or if she still continued to be a member of the family of Sewchandrai Chirania, since it is found that the plaintiff left the protection of her father-in-law and had come to Gauhati where she had taken a second husband.

As a matter of fact it is not necessary for the purpose of this suit to take note of any dispute as to the title of the plaintiff with a third party, which is not the subject matter of investigation. At the same time, it will be wrong to hold that the presumption in favour of the plaintiff, namely that her father-in-law acted as her agent, could not be drawn because she discontinued to be a member of the family of Sewchandari Chirania, even though there is no direct evidence to show that he chose to act otherwise.'' What the learned District Judge says in this connection is that

In 1935, when, the power of attorney Ex. 7 was executed, the plaintiff, being the daughter-in-law of the family, there was admittedly a relationship of trust and confidence between the plaintiff and her then father-in-law Sewchandrai Chirania; it was therefore natural that he was thus appointed as her constituted attorney. But after she had deserted that family and married for a second time, the basis for that trust and confidence naturally disappeared.

In our view, the lack of natural confidence would not entitle Sewchandrai to behave just as he would like and the presumption would be that he acted as an agent of the plaintiff in the matter of letting out the premises to the defendants, in spite of all his mental reservation or displeasure, since he did not free himself from the obligation of acting as an agent under the power of attorney. The learned District Judge failed to appreciate this legal principle and drew a wrong inference which led to an error in his finding namely that the letting out to the defendants was not on behalf of the plaintiff.

We are, therefore, of opinion that this finding was not a proper one and it is liable to be set aside. It was wrong to say that there was no relationship of a landlord and tenant between the parties in the circumstances of the case.

Mr. Lahiri, appearing on behalf of the defendant-respondents has contended that the matter is concluded by the finding of fact namely that there was no relationship of landlord and tenant between the plaintiff and the defendants and this Court has no right to interfere. In support of his contention, he referred to the following cases:- AIR 1930 91 (Privy Council); AIR 1934 112 (Privy Council) Parameswarlal Agarwalla v. Dalu Ram Jalan AIR 1957 Assam 188 .

The principle inculcated in the two Privy Council cases is that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of facts, or that the High Court has no jurisdiction to reverse the finding of fact arrived at by the, lower appellate court--however gross the error may seem to be--and (hat the question whether a fact has been proved when evidence for and against has been properly admitted, is necessarily a pure question of fact but at the same time their Lordships observed that "no doubt questions of law and fact are often difficult to disentangle. The decision of this Court referred to above only follows these Privy Council decisions. In this case the finding could not be treated as correct of con(sic) elusive because it was based on a wrong hypothesis or presumption and not on any direct evidence to the effect that the father-in-law acted adversely to the interest of the plaintiff.

After giving due consideration to the contention raised by Mr. Lahiri, we are not satisfied that the finding of the learned District Judge, on the question discussed above was correct. We therefore set aside the decision of the learned District Judge who disposed of the appeal on a preliminary point, namely as to the existence or otherwise of the relationship of landlord and tenant between the parties. We restore the finding of the trial court to the effect that there was relationship of landlord and tenant between the plaintiff and the defendants. The appeal should therefore go back to the lower appellate court for decision of relevant issues other than issue No. 2, namely as to the rate of rent and what amount is payable to the plaintiff and whether the defendants could get valid discharge for the amounts, alleged to be paid to the heirs of Sewchandrai.

The costs will abide the result.

Mehrotra, J.

I agree.