On the Death of Gunaram Rajbangshi his legal heirs Srimati Basantipriya Rajbangshi and Others vs Dambarudhar Keot and Others

G. Mehrotra, C.J.—This is Plaintiff''s appeal arising out of a suit for declaration of tenancy right and recovery of possession of the land described in schedule ''Ka'' attached to the plaint.

The Plaintiff�s case as set out in the plaint is that the land belonged to Defendants Nos. 10 to 20 covered by Kheraj and Nispi Kheraj pattas of village Baragog, Mouza Madartola. District Kamrup The land was let out to the grand-father of the Plaintiff and afterwards it was inherited by Plaintiff�s father late Mohiram and uncle Holiram It should be pointed out that the suit was brought by Sri Gunaram Rajbangshi but subsequent to the decision of the court below, he is also dead and his heirs have been brought on the record Gunaram Rajbangshi alleged that he was enjoying the land as a raivat. In 1352 B.S. corresponding to 1945 A.D. the late Plaintiff Gunaram Rajbangshi suffered from gastric ulcer and was admitted in the Medical College hospital al Dibrugarh Defendants Nos. 1 to 9 were then possessing the land from Srimali Basanti Priya Rajbangshi on adhi terms. The publicity was given by Defendants Nos. 1 to 9 that late Plaintiff Gunaram was dead and the wife of Gunaram Rajbangshi was taken away by her father to his own village Bhomlahati In 1954 Gunaram recovered and joined his service He came home and found that the Defendants Nos. 1 to 9 were in possession of the land after demolishing his houses He asked them to vacate the land but they gave out that they have taken the land from Defendant No. 10. Thereafter he approached Defendant No. 10 who first assured him that he would deliver possession to him But on the 26th February 1957 Defendant No. 10 expressed his inability to restore possession and thereafter the present suit was brought for the reliefs already mentioned, on the 26th July, 1957.

The defence taken by Defendants Nos. 1 to 9 was that as late Plaintiff Gunaram fell ill, he abandoned the land and thereafter the land was let out by the landlord to them The Plaintiff lost tenancy right in the land and the Defendants under the settlement from the landlord were in possession for more than five years.

The trial court decreed the suit. On appeal the decision of the trial court has been reversed and in the present appeal by the Plaintiff the correctness of the decision of the lower appellate court has been challenged.

It should be pointed out that the trial court disposed of the case on the two main issues which are as follows:

Whether Plaintiff''s tenancy was determined otherwise than in due course of law?

Whether the Plaintiff is entitled to a declaration of his tenancy right and possession thereof by ejectment of Defendants?

The lower appellate court has held that the suit is barred by the special rule of limitation under Article 4 of Schedule 1 to the Assam (Temporarily Settled Districts) Tenancy Act, He has further held that the suit is barred by Article 142 of the Limitation Act as the Plaintiff has failed to prove his possession within twelve years. He has further held that the Plaintiff''s tenancy terminated as he abandoned the land, as provided for u/s 73(1) of the Assam (Temporarily Settled Districts) Tenancy Act, 1935. The Plaintiff has assailed the findings of the lower appellate court on all these three points.

The Appellants contention is that the court below is not right in holding that the suit is barred by Article 142 of the Limitation Act. The court below has found that the Plaintiff has been out of possession since 1946 and the suit having been filed in July 1957, the Plaintiff has failed to prove that he was in possession within 12 years of the suit. Even If the Plaintiff was in possession any time in 1945, it does not necessarily follow that he was out of possession for more than twelve years. The finding arrived at by the court below does not necessarily establish that the Plaintiff was out of possession for twelve years, nor can it be said that the Plaintiff has failed to prove his possession within twelve years. This finding was not very seriously supported by the counsel for the Respondents.

The main points to be considered are the two other findings of the lower appellate court on which the suit has been dismissed. The lower appellate court has held that the suit is barred under Article 4 of schedule 1 to the Assam (Temporarily Settled Districts) Tenancy Act, 1935. It is not disputed that if Article 4 of Schedule 1 to the Assam (Temporarily Settled Districts) Tenancy Act is applicable to the present suit, the suit will be barred. The contention of the Appellants is two-fold on this point. Firstly it is urged that as the plea of special limitation was not expressly taken in the written statement and as there was no issue to that effect, the lower appellate court was not justified in finding against the Plaintiff on this point. The question of limitation, as contended by the counsel for the Appellants involves both determination of questions of fact and law. The point should not have been allowed to be urged by (he court below. The argument in effect is that if the point was allowed to be raised, the court below should have remanded the case to the trial court for a finding on that issue in paragraph 6 of the written statement it is stated, that neither the Plaintiff nor the patted has any right to dispossess the Defendant from the land as he has been enjoying the possession for more than five years having paid the rent duly. This paragraph in substance sets out the plea of limitation. The fact that the Defendants were in possession for more than five years can disentitle the Plaintiff to evict them only if this special limitation applies and not otherwise. The issue which was decided by the trial court, namely whether the Plaintiff�s tenancy was determined otherwise than in due course of law is comprehensive enough to include the decision on the question of the applicability of a special period of limitation. Moreover the question of the applicability of Article 4 of Schedule 1 to the Assam (Temporarily Settled Districts) Tenancy Act to the facts of the present case is a pure question of law and in our opinion the court below was fully justified in considering that question. Section 125(1) of the Assam (Temporarily Settled Districts) Tenancy Act, 1935 (hereinafter called ''the Act'') provides:

The suits, appeals and the applications specified in Schedule 1 annexed to this Act shall be instituted and made within the time prescribed in that schedule for them respectively; and every such suit or appeal instituted, and application made, after the period of limitation so provided shall be dismissed, although limitation has not been pleaded.

In our opinion, therefore, there is no substance in the objection raised by the Plaintiff that the point should not have been allowed to be argued by the Respondents before the court below.

Coming to the merits of the contention that Article 4 of Schedule 1 to the Act is attracted to the present case, it is convenient to set out the above provision of the Act:

Schedule I Part T Suits Description Period of Time from which of Suits. Limitation the period begins to run. 4. To recover pos- Two years. Date of dispos- session of land session. claimed by the Plaintiff as a raiyat or an under-raiy at other wise than under Sections 35 and 41 respect- ively.

Before this provision can be applied. It must be a suit for recovery of possession by the Plaintiff who claims as a raiyat or an under-raiyat and secondly he must be dispossessed by the landlord or his agent. He must be dispossessed by one whose dispossession can be regarded as dispossession by the landlord. It may be a case where the agent or the servant of the landlord dispossesses the tenant. It may be the case where the landlord himself dispossesses the tenant. It may also be a case where a third party at the instance of the landlord dispossesses the tenant In either of these cases it will be a dispossession by the landlord and the provisions of Article 4 of Schedule 1 of the Act will be attracted If the Plaintiff does not bring the suit during the continuance of the tenancy and as a tenant but as a rival claimant of the property to the Defendant, it will not be a suit covered by Schedule 1 of the Act. Each case thus will have to be examined on its own facts Neither the Plaintiff''s allegation in the plaint nor the written statement by itself is conclusive of the matter.

The allegation in the plaint is that the Plaintiff continues to be the tenant. He was never dispossessed by the landlord. In fact the Defendants Nos. 1 to 9 who were in possession as adhiars of the Plaintiff after wards set up a title to the property as tenants from the landlord. The case as disclosed in the plaint is thus for recovery of possession on the basis of the Plaintiff�s subsisting title as a tenant. There is, however, no allegation in the plaint that the Plaintiff was dispossessed by the landlords Defendants, though they have been impleaded as parties to the suit. The case set up in the written statement is that the Plaintiff by reason of abandonment lost his tenancy light and thereafter the landlord settled the land will) the Defendants Nos. 1 to 9 under the provisions of Section 73 of the Act. The written statement also does not take up the plea of dispossession by the landlord. The trial court found as a fact that there being no determination of the, tenancy right of the Plaintiff over (he disputed land as contemplated by Section 73, the Plaintiff did not lose his tenancy right. The lower appellate court has negative the Plaintiff�s contention that the land was let out to the Defendants Nos. 1 to 9 by the Plaintiff on adhi terms. From the fact that the Plaintiff�s case of adhi settlement with the Defendants Nos. 1 to 9 has not been established, and from the fact that the Defendants were admittedly in possession of the land in 1352 B.S. the court below has come to the conclusion that the Defendants are in possession on their own right now and thus the Plaintiff was dispossessed from the suit land long before two years prior to the institution of the suit and the suit is barred by Article 4 of Schedule 1 to the Act.

The court below has further held that the provisions of Article 4 of Schedule 1 of the Act apply, as firstly the Plaintiff has filed a suit against his landlords as well who have been impleaded as principal Defendants. Secondly it is the Plaintiff''s case that the Defendants Nos. 1 to 9 have taken settlement of the land from Defendants Nos. 10 to 20. From this fact the court below has inferred |that, the Defendants Nos. 1 lo 9 have dispossessed the Plaintiff on the authority of Defendants Nos. 10 to 20 as their agents and further that the suit is framed by a tenant against his landlords and not against trespassers; He has paid court fee on the amount of annual rent We do not think that this finding by itself necessarily attracts the provisions of Article 4 of Schedule 1 II is nobody''s case that the Defendants Nos. 1 to 9 armed will the settlement from Defendants Nos. 10 to 20 dispossessed the Plaintiff In fact Defendants Nos. 1 to 9 came into possession of the land before they actually took settlement from the Defendants Nos. 10 to 20 Nowhere it is alleged that the Defendants Nos. 1 to 9 armed with the settlement made by Defendants Nos. 10 to 20 dispossessed the Plaintiff as the agents of the landlords In our opinion there is a clear distinction between the cases where the Defendants being authorised by the landlords dispossess the tenant and cases where the Defendants having dispossessed the tenant gel his dispossession regularised by getting a settlement from the landlords In the latter case it cannot be said to be a dispossession In the landlord If cannot be argued that by grunting a settlement to a person who has already dispossessed a tanant, the landlord has ex-I pressed a desire or is a, conscious party to the'' act of dispossession by the tenant.

At this stage it will be convenient to refer to some of the authorities cited at the Bar.

Mr. Ghose for the Appellants has relied upon the case of Kapil Singh and Another Vs. Feda Ali and Others, In this case a tenant brought a suit for declaration of his right and for recovery of his possession. The landlord had settled the land with a different person and armed with that settlement the Defendant dispossessed the tenant Thereafter the suit was brought by the Plaintiff for recovery of possession and it was held that Schedule 3, Article 8 which was the corresponding provision in the Bihar Tenancy Act, did not apply. After considering the earlier decisions of that court, the Division Bench held that unless it is proved that the dispossession is by the landlord as such or his hands are discernible in the act of dispossession either through his servant or an agent or through his benamidar or through somebody who acts at his instigation and in collusion with him, the special rule of limitation will not be attracted. The ratio of the decision will be evident from the following passage at p. 395 of the report:

The key to the solution lies in focussing attention on the words ''as a raiyat or under-raiyat. This must limit the applicability of the Article to suits in which the Plaintiff claims to recover possession in his capacity as a raiyat. Therefore, it follows that the Defendant in the suit must be one against whom he should claim as a raiyat, or in other words, the Defendant must be his landlord, or, in other words, must be one who should resist the claim for recovery of possession on the ground that the Plaintiff'' is not his raiyat. ****** If a landlord dispossesses a tenant on the ground that he is an auction-purchaser of the tenancy at an execution sale, he does not resist the Plaintiff�s right on the ground that he is not his raiyat but on the ground that his ''raiyati'' right has been acquired by him and on such acquisition has merged in his superior right as a landlord. The Article, confining its operation to the field covered by the words used therein, interpreted in their plain grammatical sense, must refer to suits in which the cause of action consists of a bundle of facts, namely, that the Plaintiff is a raiyat, that his raiyati right subsists as against the Defendant in the suit, that it has been jeopardised by the Defendants act of dispossession and that nothing else has supervened so as to change the status either of the Plaintiff as a raiyat or of the Defendant as a landlord. In my view, the Article will never apply to a case in which the Plaintiff cannot say to the Defendant that ''I am your raiyat''.

The next case cited is Har Dayal Bhagal v. Nathuni Bhagwat, reported in AIR 1935 Pat 372. In this case it was decided that Article 3, Schedule 3 of Bengal Tenancy Act corresponding to the provision in question applies only to the cases of actual dispossession by the landlord. If the possession of the tenants ceased on account of the land being submerged under water, and if after reappearance of the land there was no actual taking of possession by the raiyats, it will not be a case of dispossession by the landlords

Mr. Lahiri has referred to the case of Satis Chandra Bandopadhya and Others Vs. Hashem Ali Kazi and Others, In this case Rankin. C.J. held that in order to attract Schedule 3 Article 3 of Bengal Tenancy Act it was not necessary that dispossession by the landlord should be as such. If it is shown that the Plaintiff raiyat is in fact a tenant of the Defendant who dispossessed him in respect of the land claimed in the suit. Article 3, Schedule 3 will be attracted. This case only lays down that the coming in of the landlord through the machinery of the Court does not alter the situation If the landlord enters the land even though the machinery of the Court against the will of the occupying tenant, it will be a dispossession by the landlord and the provisions of Art 3 Schedule 3 will be attracted.

The next case is Abdul Latif and Others Vs. Hamed Gazi and Others, Particular reliance is placed on the following observation at p. 899 of the report:

As regards the first of these two grounds, it has no substance, because when the landlord grants a settlement it may well be presumed that he intends that the settlement would take effect; and the consequence of this presumption must be that he expects that the persons with whom the settlement is made would go upon the land and lake possession of it.

It will appear from the perusal of this case that there was a clear finding of the Subordinate Judge that the landlord brought the dispossessor on the land. The case of Haran Chandra v. Madan Mohan reported in AIR 1921 Cal 249 was distinguished in this case on the ground that in the earlier case the Defendant had denied the Plaintiff�s title to the lands as based upon a settlement from the landlord and thus it was not open to the Defendant to prove in the same breath that the article applied. Another decision of the Calcutta High Court in the case of Ranijulla v. Ishab Dhali reported in ILR(1902) Cal 610 (FB) was also distinguished and if was observed regarding this case that it merely purported to settle a conflict as regards cases in which after the dispossession the dispossessor obtained the settlement from the landlord.

The case of Rakhit Mahanta v. Puddo Bauri reported in 9 CWN 54 is also a case where an occupancy raiyat was dispossessed by a person whom the landlord had set up as a tenant In these circumstances it was held that the dispossession was really by the landlord and Article 3 of Schedules of, Bengal Tenancy Act applied.

In the case of Krishna Kanta Sarma v. Mt. Bhuban Priya Debi reported in AIR 1950 Gau 71 the Plaintiff brought a suit that her husband was, a tenant of the land. He died eighteen years. Before On his death the land devolved on her. She had no other male member in the family and got the land managed through her husband''s nephews. The nephews constructed houses on the land with her consent. Later on the Defendants in collusion with the landlords got the name of one of the Defendants mutated in the records of the superior landlord without her knowledge or consent and thus she claimed possession. the Defendants took up the plea that the suit was barred by Clause 4, Part I, Schedule 1 of the Act. This contention was repelled and it was observed that Clause 4 applies where a raiyat or under-raiyat is dispossessed by the landlord personally or by his agent

From an examination of all these cases it is clear that Art 4 Schedule 1 to the Act applies only if the dispossession can be said to be either by the landlord himself or his agent, ft may be that the possession of the Defendant is with the authority of the Defendant''s landlords. But every possession with the authority of the landlord will not necessarily constitute dispossession of the tenant by the landlord Unless it can be found from the circumstances of the case that the dispossession of the raiyat was by the landlord, or through his connivance and collusion in which case also it will be a dispossession by the landlord, Article 4 of Schedule I will not be attracted. In the present case I have already pointed out that it cannot be that the dispossession was by the landlord.

The next point urged by the Appellants is that the finding of the Court below that the Plaintiff abandoned his land and the landlords thus had right u/s 73 of the Act to settle the land with the Defendants is erroneous The question whether the raiyat on the facts can be said to have abandoned the land is primarily a question of fact. But what are the ingredients which constitute abandonment u/s 73 will be a question of law. It is not open to this Court in second appeal to upset the findings of fact arrived at by the Court below But whether those findings constitute abandonment will be a question of law. Mr. Lahiri relied upon two cases in support of the proposition that abandonment is a question of fact. He has firstly referred to the case of Sarat Chandra Majumdar and Others Vs. Prasanna Kumar Gope and Others, . wherein it was held that whether there has been abandonment or not is in each case a question of fact. Similar view was taken in the case of Monohar Pal v. Smt Ananta Moyee Dassee reported in 17 CWN 802 and the case of Aminaddin Sheikh and Another Vs. Chandranath Sen and Others, dealing with Section 87 of the Bengal Tenancy Act it was observed that all that is necessary, in order to establish an abandonment by a raiyat is to show that he has ceased to cultivate his holding either by himself or by some other person and that he has made no arrangement for the payment of his rent. The tenant need not have left the village in which the holding is situate in order to constitute abandonment u/s 87.

Section 73(1) of the Act reads as follows-

73(1). If a raiyat or under-raiyat voluntarily abandons his usual residence in the village or the neighbourhood without notice to his landlord and, without arranging for payment, of his rent as it falls due, ceases to cultivate his holding, either by himself or by some other person, the landlord may, at any time after the expiration of the agricultural year in which the raiyat or under-raiyat so abandons and ceases to cultivate, enter on the holding and let it to another tenant or lake it into cultivation himself.

Section 73 clearly lays down that in case of abandonment as contemplated by the section, the landlord has got a right to enter upon the land, at any time after the expiry of the agricultural year in which the raiyat so abandons and ceases to cultivate and let it to another tenant or take it into cultivation himself. Before, however, this right accrues to, the landlord to re-enter and let it out to another tenant, the raiyat must voluntarily abandon his usual residence in the village or the neighbourhood without notice to the landlord, and without arranging for payment of his rent as it falls due. Further, he should cease to cultivate his holding either by himself or by some other person. The questions whether the raiyat voluntarily abandoned his usual residence in the village without notice to his landlord and without arranging for payment of his rent and has ceased to cultivate the holding are questions of fact. The Court below has categorically found that the tenant In this case voluntarily abandoned his usual residence and left the place without any notice to the landlords and without making arrangement for the payment of his rent.

Mr. Ghose contends that the finding that ;he voluntarily left his residence is no finding in the eye of law, inasmuch as the Court below has not appreciated the difference between abandonment of residence and mere non-residence. Voluntary abandonment of residence implies an intention on the part of the raiyat not to come back at any time and take back his own residence and not mere giving, up his residence for the time being he question of the raiyat''s residence is a question of fact and it is open to the Court of fact, to draw an inference from the circumstances of each case as to whether the tenant left his residence without any intention of coming back or not. In the present case it cannot be said that there was no material before the, Court below to come the conclusion that the abandonment of residence was voluntary or that the raiyat left the residence without any intention to come back. It is not for this Court to say whether the inference drawn by the Court below from the set of facts, was correct or not and thereby substitute its own inference from evidence to that of the Court below. The finding that the raiyat left the place without making any arrangement for the payment of the rent is a finding of fact and merely because the raiyat after seven years remits by money order the rent due will not necessarily give rise to the inference that the raiyat left the place after making arrangement for the payment of the rent. All the ingredients necessary u/s 73 for the landlord to reenter and settle the land with the Defendants have thus been established in this case on the findings of fact arrived at by the Court below.

The only question which requires to be considered is whether it can be said that the landlord re-entered and settled the land with the Defendants. The landlords u/s 73 must after the expiry of the agricultural year re-enter, into the land and settle it with another tenant. If a trespasser dispossesses the raiyat and thereafter obtains settlement from the land, the dispossession by the trespasser may not constitute dispossession by the landlord for the purposes of the applicability of the special period of limitation. But if the tenant has abandoned the land and the landlord settles such a land with another tenant, the settlement with the other tenant will constitute re-entry by the landlord. The abandonment is the unilateral action of the tenant and if that is complete, the landlord''s act of making settlement with another tenant itself will constitute re-entry by him. We are, therefore, of opinion that although the finding of the Court below that the suit is barred by Article 142 of the Limitation Act and special period of limitation is not correct, the finding of the Court below that the land has been abandoned by the tenant and thereupon the landlord settled the land with the Defendants Nos. 1 to 9 can not be disturbed and the appeal must fail. In the circumstances of the case, however, the parties will bear their own costs.