Stonewigg and another vs Rameshwar Narayan Singh and others

Das, J.—These analogous appeals arise out of a suit instituted by Kameshwar Narayan Singh, the Respondent in F.A. No. 53 of 1920, against the Appellant in that appeal. The suit was for recovery of certain lands specified in the plaint. Prem Narain, Nem Narain and Bindeshwari were three brothers who had certain shares in Mouzah Siroli. The Plaintiff is the son of Nem Narain. It appears that sometime in 1885 Prem Narain, Nem Narain and Bindeshwari gave a thicca lease to the proprietors of Dowlatpore concern for seven years from 1292 to 1298.

The Plaintiff''s case is that after the expiry of the lease, the Defendants first party who represented the interest of the factory held over on paying rent to the proprietors. The Plaintiff asserts that he asked the Defendants to make over possession of the disputed lands to him and as the Defendants refused to make over possession of the lands to the Plaintiff, he instituted the suit out of which this appeal arises on the 16th March 1918, claiming possession of the properties which are specified in two schedules, Sch. I comprising the milkiat property, and Sch. II comprising the zerait lands within the milkiat.

The Defendants first party resisted the suit on various grounds. It is unnecessary to enter into the defence of the Defendants because, before us, the only point that had been argued by Mr. Sushil Madhab Mullick on their behalf is, that the plaint tiled on behalf of the Plaintiff discloses no cause of action. Mr. Mullick argues that, if the Defendants first party held over on paying rent to the proprietors, the effect in law was to create in their favour a tenancy from year to year, and if the factory were tenants from year to year that tenancy could only be terminated by a notice under sec. 106 of the Transfer of Property Act.

Now Mr. Mullick points out that there is no suggestion at all in the plaint that any notice under sec. 106 was served on the Defendants first party. There if, in my opinion, considerable force in the arguments which have been advanced before us. It is undoubted law that, if a tenant on the expiry of the lease continues in possession of the property with the assent and sanction of the proprietor, then there is by the operation of law, a tenancy from year to year in favour of the tenant and if there is a tenancy from year to year, that tenancy can be put an end to only by a notice under S. 106 of the Transfer of Property Act. But the difficulty is that this point was not taken in the written statement and the learned Subordinate Judge has not gone into the question at all, nor has the point been taken in the grounds of appeal in this Court; and after all it will still be open to the Plaintiff to serve a notice upon the Defendants first party at once and determine the lease. Having regard to this difficulty, the Defendants first party have agreed to surrender possession of Sch. I properties to the Plaintiff and pay to the Plaintiff the thicca rents for three years prior to the institution of the suit and also all rent up to the time they do surrender possession of the properties to the Plaintiff. The Defendants first party undertake to surrender these lands forthwith to the Plaintiff. So far as the Sch. I properties are concerned, there will therefore be a decree, by consent of the parties, that the Defendants first party will forthwith surrender the properties enumerated in Sch. I to the the Plaintiff and also pay the Plaintiff his share of the thicca rent from the 16th March 1915 up to the date they make over possession of the properties to the Plaintiff. It is also agreed that the Defendants first party will be entitled to recover rent from the tenants for this period.

I now come to the other appeal, namely, Appeal No. 61 of 1920. We are concerned in this appeal with certain raiyati lands specified in Sch. II of the plaint. The learned Subordinate Judge has come to the conclusion that the factory has established its right to hold the lands which are the subject-matter of this appeal as occupancy tenants.

Now the record-of-rights is undoubtedly in favour of the factory and there is no evidence worth the name on either side. In my opinion the plaintiff has not rebutted the presumption of the correctness of the record-of-rights.

Mr. Jayaswal, arguing on behalf of the Plaintiff-Appellant, contends before us that it is still necessary for the Defendants first party to prove that they hold the lands as occupancy tenants and he relied upon a decision in the case of (sic) Stonewigg v. Dwarka Sing (1917) 4 P.L.W. 428 : 45 I.C. 706. But that was different case altogether. The learned Judge found on the facts, that the evidence on behalf of the Plaintiffs was reliable, and showed clearly that the Defendant No. 1, who claimed occupancy rights was not in possession of the lands previous to the lease in question and the learned Judges had no difficulty in showing that, so far as the record-of-rights itself was concerned in that case, it completely demolished the case of Defendant No. 1. In other words, the record-of-rights in the case cited, far from supporting the case of the Defendants who claimed to be occupancy tenants completely demolished it. The other case upon which Mr. Jayaswal relied is the case of Jagdeo Narain Singh v. Baldeo Singh 1922 P.C. 272: 40 I.A. 399: 2 Pat 38: 3 P.L.T. 605: 36 C.L.J. 499: 32 M.L.T.: 71 I.C 984 [P.C]. The Judicial Committee, in deciding that case did indeed say as follows:-

Sec. 108B declares that ''every entry in a record-of-rights so published shall be presumed to be correct until the contrary is proved.'' Considerable stress has been laid on this presumption on behalf of the Respondents; Once, however, the landlord has proved that the land which is sought to be held rent-free lies within his regularly assessed estate or mahal, the onus is shifted. In the present case, the lands in dispute lie within the ambit of the estate, which admittedly belongs to the Plaintiffs and the pro forma Defendants, and for which they pay the revenue assessed on the mouza. In these circumstances (sic) upon those who claim to hold the lands free of the obligation to pay rent to show by satisfactory evidence that they have been relieved of this obligation, either by contract or by some old grant recognised by Government.

But it will appear that the Judicial Committee did rely upon some evidence which showed clearly that there was a very careful enquiry made by the Government in the course of certain resumption proceedings which established that there was no one upon the lands with a rent-free title; and apart from any other consideration it does seem to me that there is a distinction between a case, where a person claims a rent-free title and a case where a person claims a title as an occupancy tenant. Under the general law the landlord is entitled to claim rent from every one shown to hold land within the ambit of his zamindari. That is the general law and if any one relies upon any exception to the general law it is for him to prove that he comes within the exception. To that extant there is a conflict between the record-of-rights and the general law which allows a landlord to recover rent |from every one shown to occupy land within the ambit of his zamindari. But the case of an occupancy tenant is entirely different. There is no denial of the right of the landlord to recover rent from the tenant and there is no conflict whatever between the record-of-rights and the case as put forward on behalf of the tenant that he has an occupancy holding within the ambit of his zamindari. In my opinion the decision of the Judicial Committee in the case to which we were referred by Mr. Jayaswal does not support the extreme proposition which was argued by him before us, namely, that although the record-of-rights is in favour of the tenant it is still necessary for the tenant to (sic) clear evidence that the (sic) the record-of-rights is collect.

I must dismiss Appeal No. 61 of 1920 with costs.

Kulwant Sahay, J.

I agree.