Ramdeyal Mahanti and Others vs Pitam Bouri

Mohammad Noor, J.—This appeal arises out of an ejectment suit. The plaintiffs-appellants are the landlords of the village. There was a holding in that village belonging to the father of the defendant Pitam Bouri. It appears that some time in 1901 one Raghunath Sarangi brought this holding to sale and purchased it himself. The learned Subordinate Judge has held that though there was a formal delivery of possession in favour of Raghunath Sarangi in fact the Bouri continued in possession of the land. During the course of the settlement operations in 1911 Raghunath Sarangi was recorded as a raiyat of the holding, while the defendant was recorded as an under-raiyat under him.

In 1925 the sons of Raghunath Sarangi surrendered the holding to the landlord and the landlord instituted the present suit for ejectment of the defendant describing him as the under-raiyat of the Sarangi who had no right to continue on the land after the surrender.

The trial Court decreed the suit. On appeal the learned Subordinate Judge has dismissed it. The plaintiffs have preferred this second appeal. The finding of fact which as I have already stated, is that Raghunath Sarangi never obtained possession of the land on the basis of his purchase in the year 1901. On that finding the learned Subordinate Judge has held the suit to be barred by limitation.

The learned advocate for the appellants however contends that the adverse possession of the Bouri as against the Sarangi cannot be of any avail to the former after the holding has been surrendered. The right of the landlord to re-enter accrued after the surrender. The Sarangi having once purchased the holding and got a formal delivery of possession became the raiyat of the land and, as such, was entitled to surrender it. This argument, though plausible, has in my opinion no substance in it. The position is very simple and, before I come to deal with it, it will be desirable to clear up one or two points which will arise later on in discussing the law to be applied on the facts found by the lower appellate Court.

Up till the year 1910 the tenancy law in force in the district of Manbhum was Act 10 of 1859. That Act does not deal with the question of the transferability of the holding. It has been held in some cases that the occupancy right as contemplated in that Act was a personal right not liable to be transferred.

There are, however, observations in a Full Bench decision of this Court in Mt.Sheoraji Kuer Vs. Dhani Mian and Maharani Janki Kuer, to the effect that the law as to transferability of the occupancy holding under Act 10 of 1859 was exactly the same as is now under the Bengal Tenancy Act. It is needless however for the purpose of this case to discuss the effect of transfer of an occupancy holding with or without the consent of the landlord and how far such a transfer was effective as between the transferor and the transferee. The position as found by the lower appellate Court is that Raghunath Sarangi brought the holding to sale, purchased it himself, obtained a formal delivery of possession of it, but the judgment-debtor continued in possession of it in spite of that sale. Though no doubt formal delivery of possession is effective against the judgment-debtor, and the auction-purchaser must be taken to have obtained possession yet the fact remains that he the Sarangi) failed to hold possession of the holding and the old raiyat continued in possession.

In effect, therefore, the Bouri continued to be the raiyat of the village. Whatever right the Sarangi might have obtained by virtue of the Court sale was lost by efflux of time and if the Bouri lost the holding by the sale he regained it by continuous possession.

Mr. R.S. Chattarji has contended that immediately after the sale and delivery of possession the Sarangi became the raiyat of the village and continued to be so till the surrender. This point has as a matter of fact been answered in the negative by the learned Subordinate Judge who has held that the landlords have not produced any paper to show that they ever recognised the Sarangi to be their raiyat or that the Sarangi ever paid rent to the landlords.

In the absence of any evidence to the contrary, and applying the general law prevailing in the year 1901, one must assume that the holding was an ordinary non-transferable holding: and assuming that such a transfer was permissible with the consent of the landlord, there is nothing to show that in this case the sale was ever recognized by the landlords or that the landlords ever recognized the Sarangi to be their raiyat. This being the case there was nothing in 1925 for the heirs of the Sarangi to surrender in favour of the landlords. No body can surrender what is not possessed by him.

Assuming that by obtaining formal possession the Sarangi became the raiyat of the land the difficulty that would arise against the plaintiffs is this. If the landlords recognized the Sarangi to be their raiyat and thereafter he failed to obtain possession of the holding and the old raiyat adversely to the new one continued to be in possession of the holding, the possession of the old raiyat will not only be adverse to the new raiyat but also adverse to the landlord. A tenancy right may be obtained by adverse possession and a raiyat may lose his right by the operation of law. It is argued that there was no provision for abandonment of the holding under Act 10 of 1859, but it is not a case of abandonment.

The question remains that if a raiyat is ousted from the holding and a third person comes to cultivate the land and continues cultivating it for a period of twenty-five years, can the landlord, after obtaining a surrender from the old raiyat, bring a suit to oust the new one on the ground of his being a trespasser? In my opinion, he cannot. It is, however, not necessary to pursue this matter further, as this was not the basis of the plaintiffs'' suit. The plaintiffs suit was based on the ground that the defendant was an under-raiyat of the Sarangi and was consequently a trespasser after the surrender.

That story has been disbelieved by the lower appellate Court and the plaintiffs cannot be allowed in this second appeal to set up an alternative case, namely, that if the defendant was not an under-raiyat he was a trespasser against the raiyat; and that the plaintiffs'' right to bring the suit accrued on the termination of the tenancy by surrender in the year 1925.

The learned Advocate for the appellants has relied upon the record-of-rights wherein it has been stated that the defendant was an under-raiyat; but, as has been pointed out by the learned Subordinate Judge, the presumption of the correctness of the record has been rebutted. It appears that during the settlement operations both the Bouri and the Sarangi claimed adverse to each other to be the raiyat and the settlement authorities recorded the Sarangi to be the raiyat and Bouri to be the under-raiyat. This entry was obviously wrong.

In my opinion on the finding of fact arrived at by the learned Subordinate Judge the appeal fails and is dismissed with costs.