Nalinikanta Mukerji vs Gobinda Ramanuje Das

Dhavle, J.—This is an appeal by the plaintiff, a landlord, who sued for recovery of the registration fee in respect of the sale of an occupancy holding by his recognised tenants, defendants 2 to 5, to defendant 1 (now the respondent) for a consideration of Rs. 1,000. The purchase of defendant 1 was admittedly made in June 1914, though both the plaint and the written statement (following the recent Record of Rights) wrongly gave the date as 17th May 1915. The lower appellate Court expressly says that we may take it that defendant 1 is in possession since the time of his purchase. He never applied to the landlord for registration, nor did he ever obtain any rent receipts from the landlord showing payment of rent on his own account.

It has also been held as a fact that "he has been paying the rent for the land but the rent is paid in the name of the original tenant." In the last Record of Rights, which was published in February 1928, this defendant was shown as in possession of the holding in virtue of the purchase. Upon this, in January 1929, the landlord registered the name of the defendant in question as the tenant of the holding, and less than six months afterwards brought the present suit for recovery of the registration fee u/s 31, Orissa Tenancy Act. The only defence to which it is now necessary to refer was that the defendant

with the knowledge of the plaintiff has been owner in possession of the holding since the purchase and has also got his name recorded in the raiyati column of the current settlement khatian, so the raiyati right (limited interest), to the disputed holding has accrued to this defendant 1 according to law.

This plea did not find favour with the learned Deputy Collector who tried the suit and decreed it and whose finding on the point is expressed as follows:

As to the limited interest or adverse possession there is no evidence before me to show that the landlord knew about the transfer and gave implied consent to the transfer since the date of the transfer.

On appeal the learned District Judge came to the conclusion that the defendant was entitled to claim "a limited right of interest as a tenant by virtue of his possession for 12 years" and that the registration of the defendant by the landlord after the acquisition by the former of this limited right came too late to entitle the landlord to recover the registration fee.

The learned advocate for the appellant has endeavoured to make out that even assuming, but not conceding, that the respondent did acquire a limited right of tenancy by 12 years'' occupation, the landlord is still entitled to a fee upon registration of the transfer because it would have been open to him, until such registration, to proceed against the holding in the name of the old tenants. I am unable to appreciate this contention, after the purchaser has acquired a right of tenancy. I do not see how any proceedings against the old tenants can affect the interest of the purchaser even though the landlord may not have registered him.

The learned advocate for the appellant has next urged that the lower appellate Court has misdirected itself in law in holding that "a limited interest of tenancy by actual occupation" begins to accrue to the purchaser from the time of his purchase irrespective of the knowledge of the landlord, and that the landlord must bring himself within Section 18, Limitation Act, if he is to recover the registration fee more than 12 years after the year allowed to the purchaser by Section 31, Orissa Tenancy Act, even if the purchase only came to his knowledge recently. The tenancy right, such as it is, must be regarded as adverse to the landlord pro tanto, and it is contended that for possession to be regarded as adverse, it must be shown that the party affected had knowledge for the requisite length of time. Now, there is more than one decision of the Calcutta High Court in which it does seem to have been held that it is immaterial in a suit for ejectment of the purchaser of a non-transferable holding that the landlord became aware of the transfer within 12 years of the suit, and that the landlord cannot have ejectment unless he sues within 12 years of the purchase or brings himself within Section 18, Limitation Act.

Two decisions of this kind have been referred to by the learned District Judge: Panchkari Chattopadhya v. Maharaj Bahadur Singh AIR 1915 Cal 738 and a decision which it purported to follow, Prabhabati Dasi v. Taibaturinessa Chaudurani AIR 1914 Cal 196. Mr. Rao who appears for the respondent has drawn attention to a much more recent Calcutta decision, Jamiruddee Naskar and Another Vs. Basanta Kumar Roy and Others, , in which a similar view appears to have been taken. As regards Prabhabati Dasi''s case AIR 1914 Cal 196 however it is to be observed that Rankin, C.J., was first inclined to take the view that in the circumstances of that particular case, and on a consideration of all the facts not merely by giving undue weight to words such as (marfatdari), used a legal inference was possible that there had been a recognition establishing the relationship of landlord and tenant between one who had paid and another who had received rent for a number of years.

It is also to be noted that the old tenant in that case had been paying rent and obtaining marfatdari receipts for about 30 years. The learned Chief Justice however based his decision on the ground that the forfeiture or abandonment, whichever it was, that entitled the landlord to claim the ejectment had occurred very many years more than 12 prior to the commencement of the suit, and that the landlord had not made out any case bringing him within Section 18, Limitation Act. The case was thus decided not on its special facts, but on what was treated as a general rule in Panchkari Chattopadhya v. Maharaj Bahadur Singh AIR 1915 Cal 738 by Mukherji and Beachcroft, JJ., though in this later case it was said that the transferee had been openly in possession, of the land since his purchase--an observation which implies that the landlord ought in the circumstances of the case to have known of the transfer. Both these cases were referred to in Manulla Kolu v. Prasanna Kumar Sarkar AIR 1920 Cal 202 by Beachcroft, J., who was a party to the decision in Panchkari''s case AIR 1915 Cal 738.

The learned Judge pointed out that if the landlord is to be barred by 12 years'' limitation, it must be shown, so far as the claim for ejectment rests on the abandonment of the holding by the original tenant, that the abandonment took place more than 12 years before the suit. As regards what may be called adverse possession or the acquisition of a limited interest by adverse possession, the learned Judge referred to another decision of the Calcutta High Court in which it was pointed out that one important item in this connection is that the landlord must know of the transfer to the purchaser for the possession of the latter to become adverse to him.

He also accepted the argument on behalf of the landlord that to establish a case of adverse possession, the adverse possession must be adequate in continuity, publicity and extent, and that the element of publicity would be wanting if the landlord was not aware of it. As against these considerations in favour of the appellant, Mr. Rao has laid stress on Cammiade, J''s observations in the recent case already referred to, Jamiruddee Naskar and Another Vs. Basanta Kumar Roy and Others, :

It is only by invoking the aid of Section 18, Limitation Act," says the learned Judge, "that the landlord can avoid the effect of possession and assertion of title by a third person claiming the interest of a tenant on the land. It is obvious that if a person occupies the land for a period of 12 years he may acquire, if he so chooses, an absolute interest in the land, and it is only because he chooses to assert only a limited interest that he acquires only such interest. Therefore whether the landlord chooses to make himself acquainted with the facts that the man in possession asserts his own title to the land or not, limitation will run against the landlord.

With all respect it; seems to me that though the argument rests at least as much on an assertion of title as on possession, the conclusion rests on possession only. How can there be an assertion of title to operate against the land, lord unless it is made to his knowledge, and how can a purchaser who only pays rent in the name of his vendor be said to assert his own title as a tenant? Marfatdari receipts are by no means confined to unrecognised purchasers, and the party who obtains them puts forward not his own title but that of the person on whose behalf he makes the payments. The learned District Judge has not found in this case that prior to the recent Record of Rights the defendant at any time claimed to hold the land on his own account in virtue of the purchase whether or not the landlord agreed to recognise him as a tenant. I have already quoted the finding or implied finding of the trial Court on the question of adverse possession, and this finding has not been reversed by the District Judge.

It has been urged on behalf of the respondent that the Deputy Collector was in error when he said that there was no evidence before him to show that the landlord knew about the transfer and gave implied consent to the transfer. Reference has been made to the statement of the defendant''s witness, the agent, Prannath, that the defendant was in possession of the land since the date of the purchase to the knowledge of the plaintiff, and it has been urged that this allegation of the witness was not shaken in cross-examination because he then stated that, "(the) tahsildar of (the Zamindar calls for rent from defendant for the suit land, and so I know about the knowledge of (the) landlord about the transfer."

u/s 103, Civil P.C., I have allowed both the parties to refer to the evidence, because the trial Court clearly overlooked Prannath''s statements and the lower appellate Court proceeded on a view of the law which rendered such evidence unnecessary. It seems to me however that the evidence referred to does not establish what the respondent is contending for, namely that he had in fact at any time since his purchase claimed to hold the land on his own account, whether or not the landlord agreed to accept him as the tenant. I come to this conclusion all the more readily because it is not the respondent''s case that he never asked for a receipt on his own account and the only receipt produced in the case is the marfatdari receipt of 1924.

It is moreover significant that that receipt was given by the landlord after a rent decree obtain, ed against the old tenants, and that the recent Record of Rights actually gives the names of the old tenants with the addition that the respondent is in possession by virtue of his purchase. The attention of the lower appellate Court does not appear to have been drawn to Beachcroft, J''s. observations in Manulla Kolu''s case AIR 1920 Cal 202 regarding what it is necessary to prove in order to enable the purchaser to set up a plea of adverse possession of a limited interest against the landlord. Under the Orissa Tenancy Act, where the landlord becomes aware of the purchaser of a holding at the time of the purchase, he cannot at once sue either for ejectment or for the recovery of the registration fee, for Section 31 (as the learned District Judge has pointed out) gives the purchaser one year in which to apply to the landlord for registration of the transfer.

In such cases the period of limitation, whether for ejectment or for recovery of the registration fee, would no doubt begin to run from the expiry of one year after the date of the transfer. But the position would seem to be entirely different where it is not shown that the landlord became aware of the purchase at the time, and the purchaser did not assert a right to hold on his own account except very shortly before the suit. Sub-letting or mortgaging for not more than nine years is possible under the Act without the consent of the landlord, and it is open to a landlord to accept rent from any agent of the raiyat, provided it is paid on behalf of the raiyat, without laying himself open to the charge of recognising that the person who makes the actual payment has any interest in the holding or is even in possession of it.

As it does not appear in the present case that the landlord became aware of any intention on the part of the defendant to claim under the purchase irrespective of the consent of the landlord at any time prior to the entry in the Record of Rights of 1928, the landlord''s claim to the registration fee cannot, in my opinion, be held to be barred.

The suit was not one in ejectment, of course, but so far as the starting of limitation is concerned, the right to recover the registration fee seems to be on much the same footing as the right to eject; the landlord may either sue for ejectment, or if he chooses to consent to the transfer, he may register and sue under the Orissa Tenancy Act for the registration fee: see Mrutunjoy Paharaj v. Jagannath Jeu AIR 1918 Pat 255.

In my view the decision of the lower appellate Court cannot be sustained and must be reversed. The appeal is allowed and the decree of the trial Court restored with costs in all Courts.