Ramsunder Tewari and another vs Dulhin Bataso Kuer

James, J.—This second appeal arises out of a suit for arrears of rent instituted in the following circumstances. The defendant, who is a proprietor in his estate gave a usufructuary mortgage of bakasht land to the plaintiff who then leased the land to the defendant for a term of three years, reserving an annual rent of 26 maunds 3� seers of paddy. The lease expired in 1333 Fasli, but the plaintiff stated that after the expiry of the lease it was being renewed annually and that the defendant continued to hold the and on the same terms as before. The defendant denied that he had continued to The the tenant of the plaintiff after the expiry of the term of the kabuliyat and the Munsif, finding that the renewal of the lease had not been proved, dismissed the suit. His decision was reversed on appeal by the District Judge who found that the defendant was still in possession of the land, and came to the conclusion that the defendant had voluntarily held over during the year in the suit with the consent of the plaintiff. Therefore applying the principles of S. 116, T.P. Act, he found that the defendant washable to pay rent to the plaintiff at the rate specified in the kabuliyat.

In coming to his conclusion the District Judge laid some stress on the entries in a khasra prepared by the Irrigation Department wherein were entered the names of persons'' who had taken a long lease of canal water. The defendant''s name appears in this khasra of 1335 as indicating that he is the lessee under the Irrigation Department. The advocate for the appellant argues that weight should not have been given to this khasra because it may have been merely a continuation of a previous khasra in which the name of the original lessee was continued as a matter of course. But the District Judge, discussing this khasra, has quoted the evidence of the plaintiff''s husband, which he accepts, wherein this witness said that the khasra in question was prepared in 1335 Fasli for a seven years, lease in a certain man''s name who had stood in that khasra although he had transferred this holding in 1336, because the, lease had originally been made with him in 1335. The learned District Judge accordingly considered that the entry of the defendant''s name as having taken the lease in 1335 implied that he had not abandoned the cultivation of the land on the expiry of his kabuliyat in 1333. The learned District Judge has remarked that the presumption of correctness attaching to the entries has not been rebutted, but apparently all that he means by this is, that this evidence, which is admissible under S. 35, Evidence Act, docs prima facie show that the defendant was cultivating the land in 1335 and that the defendant has not been able to rebut this evidence by proving that he has not been cultivating. The learned District Judge going on to discuss the case in general remarks that the defendant''s story that he has quarrelled with the plaintiff over the question of premium payable on the plaintiff''s entry on other land in the estate which he has purchased, rather supports the case of the plaintiff than that of the defendant, accounting for the fact that the defendant was contesting this suit; and he comes to the conclusion that the defendant had voluntarily held over in the years in suit with the tacit consent of the plaintiff. It would have been better if the learned District Judge had discussed the oral evidence in more detail, but I do not consider that it is possible to say that he has arrived at this conclusion on the point of fact without considering the evidence in the case.

It is argued that if the provisions of S. 116, T.P. Act, are to be held to apply to the occupation of this land by the defendant, it must be proved that the defendant, holding over in this fashion, has agreed to pay the rent which he paid, and that the landlord has expressly consented to this holding over. If a tenant holds over after the expiry of his lease he ordinarily becomes a trespasser, unless the landlord in some manner signifies his intention of recognizing the continuance of the tenancy, which in the present instance is sufficiently indicated by the fact that the suit for rent has been instituted. If the plaintiff had sued the defendant for damages on account of his wrong occupation of his land, it would have been necessary, if the defendant wished to deny that he was a trespasser, that he should indicate that the landlord had in some way or other signified his intention of the continuance of the tenancy, but that question does not arise when by the very form of his plaint the landlord recognizes the tenancy.

It may possibly be doubted whether the provisions of S. 116, T.P. Act, apply as Statute Law to govern the relationship of the parties in this case in view of the provisions of S. 117 of the Act, which excludes leases for agricultural purposes from the operation of Chap. 5. The same doubt might apply to the application of S. 106 of the Act. But the rule laid down in S. 106, T.P. Act, did not become part of the law of India for the first time by the enactment of the Transfer of Property Act. It was a rule which had been observed before the passing of this Act in the consideration of agricultural leases not governed by any special law. Therefore when the defendant is found to be continuing in possession he will be presumed to be a tenant from year to year, in the absence of any evidence proving that he holds on a different tenure.

On the question of what would in such cases be deemed to be the amount of rent payable, in the absence of evidence of a special contract varying the amount to be paid, there can be no doubt that the provisions of S. 51, Ben. Ten. Act, will apply since those provisions apply to all agricultural tenancies; and from year to year the rent which was payable in the previous year will be presumed to be the rent payable for the holding. It is possible that the tenant might here be entitled to the benefit of the provisions of S. 44-A, Ben. Ten. Act, though I doubt whether he could be held to be a raiyat of his own bakasht land, merely because he has created a temporary intermediate tenure. However that may be, when we rind that the defendant is holding over, it cannot be doubted that, in the absence of proof of any contrary arrangement, he must be deemed to be governed by the same conditions as governed his tenancy while he was holding under the kabuliyat. So that whether the learned. District Judge has erred or not in regarding the provisions of S. 116, T.P. Act, as applicable, the conclusion at which the Court is to arrive in a suit of this kind for arrears of rent instituted by the landlord, will be the conclusion at which the learned District Judge has actually arrived; and no legal ground has been made for interfering with his decision.

The learned advocate takes the objection that, although the plaintiff landlord treats his claim as a claim for rent he has claimed interest at a rate which would not ordinarily be allowed in a rent suit. But this question has not been discussed by the learned District Judge, whose judgment omits any mention of interest, which is also omitted from the decree. The plaintiff has preferred no cross-objection on this point; and the decree must stand as it is. The plaintiff might probably have been able to claim interest as legally due by virtue of the provisions of section 67, Ben. Ten. Act; but as he has omitted to make the claim in the appeal, there is no reason for making any alteration in the decree. The appeal is therefore dismissed with costs.