Mt. Haliman Bibi and Another vs Muhammad Tajamul Hussain and Others

Wort, J.—This is an appeal from the decision of Mohammad Noor J. arising out of an action for the recovery of 04 acre of land with a house thereon which at one time was in possession of one Bhajani Mahalik, who was chandnadar. The appellant before my brother, Mohammad Noor, was defendant 2. One of the questions of fact decided by the Courts below was whether the son of Bhajani Mahalik predeceased him or whether he survived him and in his turn became the chandnadar. It was originally recorded in the Provincial Survey, as I have already indicated, in the name of Bhajani Mahalik. In the current settlement it was recorded in the name of defendant 1, Sunai Bewa, in other words, widow of one Bama Mahalik, the son. On 19th December 1932, defendant 1, the widow, executed a kobala in favour of defendant 2.

There were two other transactions a few days later, that is, on 11th January 1933, which have been held to be merely transactions to cover up the true nature of the transaction of 19th December. In other words, as I understand the judgments of the Courts below, they were transactions one of mortgage and the other of sale of a lesser area of the land, which, if taken at their face value, would lead one to suppose that the whole of the land, the subject-matter of the tenancy, had not been transferred, and having regard to the events which happened, this is explicable on the grounds that one of the contentions put forward by the defendant was that the holding had not been abandoned. One of the arguments on behalf of the parties in the Courts below was that this tenancy was a mere tenancy-at-will. There has been a finding against that based upon a decision of this Court in Jahabaj Khan v. Srikrishna Dey A.I.R (1936) Pat. 29 where it was held that the tenancy was not a tenancy-at-will. Sub-section (2) of Section 236, Orissa Tenancy Act, provides:

Save as otherwise expressly provided in this Act, the incidents of the tenancy of a chandnadar shall be regulated by local custom or usage and his rent shall be liable to re-assessment on each revision of land revenue settlement.

The character of such tenancy can be gathered from the definition in Section 3, Sub-section (3):

"Chandnadar" means a person holding land which has been recorded as chandna in the course of a settlement of land revenue, and for which rent has been fixed for the term of that settlement, and includes also the successors in interest of such a person.

It is not too much to say from the definition in the Section, to which I have already referred, that it is indicated that a tenancy of the character with which we are dealing in this case, at least subsists during the currency of a settlement. In the result, apart from the question which was argued before Mohammad Noor J. as to the competency of the appeal before the first Appellate Court, the question which arose was whether defendant 1 could be held to have abandoned the holding.

The contention of defendant 2, the transferee, relying, as I have already indicated, upon the other two transactions of 11th January 1933, was that the holding had not been abandoned, and apart from the trans, actions to which I have just made reference, reliance was placed upon the fact that the chandnadar, defendant 1, after the transfer of December 1932 remained in possession. In my judgment it is a contention that cannot be supported, because it has been found as a fact that the possession of the defendant was merely the occupation of one room in the house, which stood on the land with the leave and license of the transferee, defendant 2. Even supposing if something more than a mere license is meant, it could, in the circumstances, be no more than a sub-tenancy and it would be impossible to contend that the relationship between the transferor, that is defendant 1, and the plaintiff, the landlord, continued.

The learned advocate for the appellants has failed to state what other circumstances would be necessary for the purpose of holding that an abandonment has taken place. In my judgment, it is impossible to contend that the decision of the Court below that the holding or tenancy had been abandoned is wrong. If the holding was abandoned, there is no doubt and it is not seriously disputed that the plaintiff is entitled to recover.

One other question was raised which is not very strenuously pressed, is the question of competency of the appeal by defendant 2 in the first Appellate Court. The action in that Court had been dismissed for reasons which need not be stated. Defendant 2 appealed, and there was a cross-appeal or cross-objection by the plaintiff Obviously the contention could not be that defendant 2 should not have appealed, but that the cross-objection of plaintiff 1 was incompetent and that there should have been a properly constituted appeal by him.

Whether described as a cross objection or as an appeal, it seems to me not to matter. The only question that could possibly have arisen would be whether coming with his cross-objection the plaintiff had paid the proper court-fees. No question arose as regards that and apart from the consider.; actions which have been stated by the learned Judge in the Court below and those: to which I have referred, it must be remembered that the Court had the widest powers under Order 41, Rule 33, Civil P.C. In my judgment, there is no substance in the objection as to the competency of the cross-objection by the plaintiff. For the reasons which I have stated, in my opinion the decision of Mohammad Noor J. is right.

There is reference to one authority on the question of abandonment: Laley Dharnidhar v. Jugeshwar Mahton A.I.R (1935). Pat. 269. The head-note says that 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.

Mohammad Noor J. decided that where the raiyat who has executed a sale cultivates the land under the purchaser as an under raiyat, the landlord is entitled to a decree for ejectment against the purchaser. This was a case under the Bengal Tenancy Act. One of the contentions upon which the three appeals were decided, was that where provision has been made for the payment of the rent, it could not be held that there had been an abandonment. There can be no possible application of that decision to the facts of the present case for the reasons which I have sufficiently stated. In my judgment the appeal fails and must be dismissed with costs. The stay order is discharged.

Harries C.J.

I agree.