Narendra Nath Patra and Others vs Bhagabat Chandra Mallik and Others

Wort, Ag. C.J.

It would be waste of time to state the facts as they are clearly stated in the judgment of the Chief Justice with regard to which this appeal is preferred.

The question whether the whole holding had been transferred depended upon whether the alleged transfers to defendants 1 and 2 were fictitious and the finding of the first Appellate Court is quite clear with regard to that matter a finding which is stated by the Chief Justice in the judgment under appeal. The result therefore was that the case had to be treated on the footing that the whole holding had been transferred. A custom to transfer had been established before the District Judge and the plaintiff-landlords'' suit had been dismissed.

On appeal the learned Chief Justice came to the conclusion that the defence that there was a custom to transfer was not sufficient in the circumstances, the circumstances being that the holding had been transferred in different portions to different persons.

On the authority of a decision which has never been questioned being the case in Tirthanund Thakur v. Mutty Lal Misser (1877) 3 Cal. 774, the proof of such a custom in the circumstances was not sufficient to defeat the plaintiffs'' claim as it was necessary to prove a custom not merely of transferring the holding but also of transferring the holding in different parts to different persons. That decision was followed in a decision of this Court in Ramji Prasad Sahu v. Mohamed Anwar Ali Khan AIR 1917 Pat. 142. Incidentally the proper issue to be framed in such a suit in circumstances which are present in this case is indicated by Sir Edward Chamier in Suraj Deo Narayan Singh v. Pachh Narain Singh AIR 1917 Pat. 635. At page 228 of the report he made the following observation:

It has neither been pleaded nor proved that an occupancy tenant is entitled to transfer his holding or the greater part of it piecemeal and call upon the landlord to recognize the different transferees or recognize any division of the holding.

I say that the issue which should be framed in circumstances such as are present in this case is indicated by that observation of Sir Edward Chamier. Dr. Sen in appeal argues that the issue was not framed and that the matter should be remanded to be heard and determined on that rather wider point. But it is to be observed that the Chief Justice in the course of his judgment in this case has stated that the point arose whether there should be a remand, and he was of the opinion that that was not the correct course in this case, as the defendants neither alleged nor proved such a custom, nor had there been any contention before the Chief Justice that such a custom existed. As my learned brother pointed out during the course of the argument, although there was no such issue raised, if evidence had existed which would entitle the Court to come to a conclusion with regard to the matter, the learned Chief Justice might have been asked to decide the question u/s 103, Civil P.C. But that was not suggested nor was it suggested'' in the grounds of appeal before us. Now shortly stated, the matter is in this position. The plaintiffs came to prove a case which would entitle them to question the transfers from the original tenant. Although mention was made in the plaint as to non-existence of a custom to transfer, such an allegation is quite unnecessary and it was entirely for the defendants to set up such custom and incidentally of course to prove it which would defeat the plaintiff''s claim.

If the Judge of the trial Court omitted to frame an issue which sufficiently embraced these points, it was at the risk of the defendants that the trial Judge was allowed to do so, and the fact that neither party addressed his mind to this question does not in any way assist the defendants in the matter. The short answer to the whole case is that the onus was entirely upon the defendants. If they risked going into Court with an issue in this form and without evidence to satisty that issue and that issue alone, then the law being what it was, they must necessarily fail. I would repeat in this connexion that the law as laid down in the case reported in Vol. 3 of the Calcutta Series has never been doubted nor is it questioned in this Court. In my opinion the decision of the learned Chief Justice was correct and the appeal therefore fails and is dismissed with costs.

Manohar Lall, J.

I entirely agree.