Raghunandan Saha and Others vs Kumar Kamakhya Narayan Singh and Others

Ross, J.—These are appeals against decrees of the Judicial Commissioner of Chota Nagpur in suits brought by the respondents against the appellants for rent. In all the cases the facts are the same. The defendants are the successors of the grantees of istimrari mukarrari lease of the properties in suit from the predecessor of the plaintiff. These leases, which the defendants maintained to convey permanent heritable interests, have been held to be leases for life only. For a number of years after the death of the original grantees their successors continued to pay rent and they got receipts from the plaintiff''s predecessor in the name of the old lessee, but eventually they declared that they would pay no more rent unless they were recognized as permanent tenure-holders, In this way payment of rent ceased in the year 1900; and in 1904 the tenants applied for mutation of their names in the landlords'' papers. In 1904 notice to quit was served upon them without effect; and this notice was repeated in 1915 and 1917. Then came suits in ejectment in 1919 which failed,

The ground upon which the learned Judicial Commissioner has granted a decree for rent is that the defendants had never claimed to hold the land free of rent, but had always taken the position that they were permanent tenure-holders; and in his opinion any title that they may have acquired by prescription against their landlords is this title to a limited interest. It is contended on behalf of the appellants that the stage of assertion and counter-assertion has passed and it is the duty of the Court now to ascertain the facts; and it is argued that the facts are plain. There was a lease for life to the original grantee followed by a lease from year to year to his successors until they ceased to pay rent or at the latest until the Raja served them with a notice to quit. This, it is contended, put an end to the tenancy in 1904 and since then there has been in fact no relation of landlord and tenant; and whether the defendants may have asserted in defence to the suit in ejectment, they were in fact trespassers and nothing mote. Consequently after the lapse of twelve years from the period fixed by the notice to quit the plaintiff''s right to the property was extinguished u/s 28 of the Limitation Act. See also In Re: Jolly, Gathercole v. Norfolk (1900) 2 Ch. 613 : 69 L.J.R 661 : 48 W.R. 657 : 83 L.T. 118 : 16 T.L.R. 521.

Now, it may be that the defendants might have acquired some sort of interest by adverse possession by which they would have been under no obligation to pay rent to the plaintiff; but that has never been their case and the suit in ejectment failed not because of a title by advers(r) possession in the defendants, but by reason of Article 139. The Record of Rights published in 1910 shows the defendants as istimrari mukar-raridars. Their plea in the suit in ejectment was that they had for more than twelve years asserted and claimed their permanent istimrari mukarrari interest and openly continued in adverse possession to the knowledge of the ancestor of the plaintiff as permanent istimrari mukarrari. This assertion was made more than once in their written statement and, in my opinion, it is not open to the defence to change their ground now and say that they are not liable to pay any rent at all. The rent that is claimed is the mukarrari rent. In Obhoy Gobind Chowdhury v. Beejoy Gobind Chowdhury 9 W.R. 162 a deposition by the defendant in a previous suit admitting the relation of landlord and tenant was considered sufficiently strong prima facie proof of the relationship, and no further proof was required. The position taken by the defence has to be taken into consideration in deciding this case. It is one of the facts which have to be looked at and it cannot be got rid of merely by saying that the time of assertion and counter-assertion has gone; for aught we know, the attitude of the plaintiff may have been determined by the position taken up by the defendant. It was long after the notice to quit had expired that they got themselves recorded in the Record of Rights as istimrari mukarraridars. They took the position that the notice to quit had no effect upon them and they cannot now turn round and say that the notice to quit terminated the relation of landlord and tenant.

A paint was taken on behalf of the appellants that the Revenue Court had no jurisdiction to try these rent suits because the relation of landlord and tenant was not admitted. The Record of Rights showed this relationship and that, in my opinion, is a sufficient basis for a suit in the Revenue Court for rent, If it had turned oat that in fact the relationship did not exist, than the suit would have failed on the merits; but in fact it succeeds on the merits and there seems to be no question of want of jurisdiction.

In my opinion these suits were rightly decided by the Judicial Commissioner and the appeals must be dismissed with costs.

Das, J.

I agree.