Ramkishun Pande and Another vs Bibi Sohila and Others

Agarwala, J.—This is an appeal by the defendants from a decision of the Subordinate Judge of Patna reversing a decision of the Munsif of Bihar. Plaintiffs sued for declaration of title to and confirmation or recovery of possession of survey plot No. 1273 consisting of 11 acres of land in mauza Parsarai, Tauzi No. 7560. A privately-partitioned takhta in that mauza belonged to three cosharers, namely Shamsunnissa, Husaain Bandi and Chamru Pande. By a civil Court partition in 1911 each of these cosharers was allotted a separate takhta. Batwara plot No. 13 fell to the patti of Shamsunnissa, plot No. 14 partly to Shamsunnissa and partly to Hussain Bandi and plot No. 16 to Hussain Bandi. Plot 13 which consisted of a house and sahan was acquired by plaintiffs by exchange with Shamsunnisa in 1927. In the survey which commenced while the partition proceedings were pending these three plots were recorded as survey plot 1273, which is shown in the "gair mazrua malik" khatian.

In the appropriate column it was noted that Aklu and Badar were in possession of the plot. The defendants are transferees from Badar''s widow. The first Court found that Aklu predeceased Badar, that the latter''s widow transferred the house and land to the defendant in 1918, that the tenancy commenced after the coming into force of Section 108(j), T.P. Act, 1882, and, therefore that the transfer was valid.

The lower appellate Court held that the inference to be drawn from the survey entry was that Aklu and Badar had no title to the land on which their house was situated and that it was not transferable without the consent of the landlord. The suit was therefore decreed with respect to Batwara plot No. 13 and so much of Batwara plot No. 14 as fell to the patti of Shamsunnissa, and dismissed with regard to the rest of the land. The instructions for filling up the khasra (R. 103 of Technical Rules of the Settlement Department, 1927, Vol. 1, p. 39) directs that:

in the case of uncultivated lands no entry of landlord''s name need be made in Col. 2 (i.e. in the column provided for the name of the cultivator), but the entry will be in the form ''gair mazrua khas'' for lands in possession of the rent receiver and in the form ''gair mazrua am'' for lands in which the villagers have a right in common.

This corresponds to Rule 271 of the former Survey Manual. Rule 125(a) corresponding to Rule 293, Survey Manual, directs that:

in the case of uncultivated lands in direct possession of the landlord the entry in Col. 4 (of the khatian) will be ''gair mazrua khas'' or some other corresponding phrase.

Rule 128 (corresponding to Rule 297, Survey Manual), directs that:

when lands covered by houses are not included in any agricultural holding, they may be entered separately in a continuous khatian slip for the whole village site, if this be convenient, but details of occupancy must always be entered against each plot number.

Finally, Rule 278 directs that:

if the tenant of homestead land is not a raiyat, the plots will be entered in the gair mazrua malik khatian without any specification of rent.

Neither Aklu nor Badar held any agricultural land in the mauza and the land in dispute does not form part of any agricultural holding. The entry relating to it appears to have been made under Rules 128 and 278. It will appear, therefore that the entry relating to the land in dispute was made merely as directed by the rules and was not meant to be a decision as to the rights of the landlord and occupants respectively.

It is contended on behalf of the appellants that as they erected a pakka structure four years before the plaintiffs acquired the land, in place of the mud house which had been occupied by Aklu and Badar and which had fallen down, and as this . had been done to the knowledge of the landlord, the latter is estopped from denying that the, appellants have a permanent tenancy and are not liable to be ejected. Reference was made to the decision of the Privy Council in AIR 1925 146 (Privy Council) , in which it was held that, where a lessor had stated to the lessee, in answer to the latter''s inquiry, that the lease was a permanent one, and, acting upon that answer the lessee had built a house on the leased land, the lessor was estopped from denying the permanent nature of the lease.

There is no similarity between the facts of that case and the facts of this case. Reference was also made to the decision in Ramsden v. Dyson (1866) 1 HL 129 (at p. 170) that:

if a man under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation.

In the present case it has not been shown that when Aklu and Badar first occupied the land they had been led to expect a permanent tenancy.

The house they erected was made of mud and the mere fact that the landlord stood by and acquiesced in the erection of such a structure does not imply either that the occupier was under the impression that he had a permanent tenancy or that the landlord intended to create such an impression. In the absence of evidence to the contrary, Aklu and Badar, who were kumhars, were, in my opinion, probably licensees who were permitted to occupy the land for the purposes of their trade as potters, or at most were tenants-at-will having no transferable rights in the land.

Consequently the defendants acquired no rights in the land by their purchase, and as they bought it without the landlord''s consent and without his having done anything to create or encourage an expectation that they would be treated as permanent tenants, the landlords are not estopped from ejecting them. It was next contended that the plaintiffs were not entitled to eject the defendants without notice to quit. In the case of a tenancy-at-will no formal notice is required: Ramdhani Gope and Another Vs. C.V. Scott and Others, . Lastly, it was urged that the tenancy was transferable. Both Courts have found that a custom of transferability has not been established. The first Court however held that the plaintiffs had not, in their plaint, clearly alleged that the tenancy commenced before the Transfer of Property Act came into force and therefore that Section 108(j) of that Act ought to be applied to it. Section 108 can have no application to a tenancy-at-will, for it merely defines the rights and liabilities of "lessor and lessee" and Section 105 defines a lease as a transfer of a right to enjoy immovable property for a certain time" or "in perpetuity."

The appeal must be dismissed with costs.

Macpherson, J.

I agree. In respect of the homestead of a non-raiyat the record of rights avoids any entry from which any inference can be or is to be drawn as to the terms on which the non-raiyat holds. Ordinarily the entry is deliberately limited to showing that A B, the non-raiyat, is the occupant of a plot of land situated on the village site entered in the record (under the instructions in the Technical Rules) in the gair mazrua malik khatian.