Sukadev Ram and Another vs Kulamani Sen and Others

Manohar Lall, J.—This is an appeal by the defendants who are aggrieved by the concurrent decisions of the Courts below by which they have decreed the suit instituted by the respondents for ejecting them from two plots in the following circumstances. The plaintiffs'' case is that they acquired the rights of the previous occupancy tenants in plots Nos. 3152 and 3146, by purchase in the year 1919, at a certificate sale in execution of a decree which was obtained by a landlord. Plot No. 3152 has an area of 414 acres and the other one 3146 has an area of 210 acres. Defendants 3 to 5 were darpattadani or under-tenants of these two plots. In 1917 defendant 2, the appellant before me, purchased plot No. 3146 from the darpattadars and in 1921 defendant 1, also an appellant before me, purchased plot No. 3152 from the darpattadars. According to the plaintiffs the darpattadars have no rights of occupancy in the lands and are mere tenants at will, and, therefore, they have no right whatsoever to make any transfer so that defendants 1 and 2 acquired no rights whatsoever by the sales of 1917 and 1921. Accordingly the plaintiffs have instituted the suit to recover possession of these lands from the defendants on 2nd May 1938. It should be stated here that the purchase of the occupancy rights was by the plaintiffs and defendant 7, but by some amicable arrangement between them the plaintiffs have acquired the whole of the occupancy rights.

The plea of defendants 1 and 2 was that e the original darpattadars from whom they obtained the transfer were not tenants-at-will but they had a right of occupancy and that there was a custom of transferability in respect of the darpattadar''s interest in the locality. It was also pleaded that the plaintiffs have received mutation fee from the defendants. In the alternative it was pleaded that the suit is barred by adverse possession. The Courts below have concurrently held that the original darpattadars were mere tenants at will, that there is no custom of transferability in respect of the darpattadar''s interest, and that the plaintiffs have never received mutation fee f from the defendants. The defendants had also pleaded that the suit was not maintainable in the civil Court and was not competent without the service of a notice to quit as required by Section 57, Orissa Tenancy Act, but this plea was negatived on the finding that this was a suit to eject a trespasser. With regard to the plea of adverse possession the Appellate Court took the view that defendants 1 and 2 cannot be deemed to have prescribed anything more than the right of a darpattadar as they never manifested any intention to hold the lands in any different right, and, therefore, the plaintiffs have a right to eject the appellants who g are merely darpattadars as they have no right of occupancy in the suit lands. Hence the second appeal to this Court.

In my opinion the appeal must succeed in any view of the case whether the rights of the parties are governed by the Orissa Tenancy Act or by the Transfer of Property Act. Let us assume that the rights of the parties are governed by the Orissa Tenancy Act. In that case Section 57 provides that an under-raiyat shall not be ejected by his landlord except on the expiration of a written lease or when holding otherwise than under a written lease at the end of the agricultural year within which a h notice to quit has been served upon him by his landlord. The finding of the lower Appellate Court is that the defendants merely prescribed the darpattadar''s right and were in possession for over 12 years. Therefore they cannot be evicted as no notice has been served as required by Section 57. This question was considered under point 3. The learned Subordinate Judge observes that the darpattadar being a tenant-at-will no formal notice is necessary, but he omitted to consider the provisions of Section 57. The rulings relied upon by him, namely Ramdhani Gope v. C.V. Scott AIR 1925 Pat. 256 and Ramkishun Pande v. Bibi Sohila AIR 1933 Pat. 561. are not cases of under-raiyats but are cases of tenants-at-will or licensees. It may also be observed that the trial Court took the view that the relationship between the parties is not that of a landlord and tenant or under-jtenant and, therefore, the suit is a suit against a trespasser and was cognizable by the civil Court. He also omitted to consider the effect of Section 57.

Let us then assume that the tenancy is not an agricultural tenancy and is governed by the Transfer of Property Act. The finding of fact of the lower appellate Court is that the land is Puruna padia (old waste) and that the defendants have begun to raise paddy on the land shortly before the suit and, therefore, the holding is not an agricultural holding. I am not satisfied with this finding because there is no consideration of the evidence as to what is the nature of the relationship or the tenancy between the landlord and the occupancy tenants of these lands. These lands have been recorded in the survey settlement as agricultural lands. If the lands had been non-agricultural presumably no entry would have been made in the record of rights. Assuming however that the lands are non-agricultural the case of the plaintiff''s is not at all improved because it must then be held that the defendants are in possession from 1917 and 1921 adversely to the plaintiffs. The suit of the plaintiffs therefore which was instituted in 1938 is hopelessly barred by limitation. But says the Advocate-General that nothing was done on the lands which were waste lands till 1931 and, therefore, the possession must be deemed to be a possession of the true owners, that is to say, of the plaintiffs. But this argument is equally of no help to him. The true owners of these lands were the outgoing persons whose interests were purchased by the defendants in 1917 and 1921. The only title which the true owner had at that time was to be in possession of these lands, but the title had passed by means of the kobalas to the defendants. Therefore in the absence of any actual act of possession, possession must be deemed to be with the person in whom title lay, that is to say, defendants 1 and 2. Therefore even on the argument of the learned Advocate-General if no act of possession could be exercised I must hold that defendants 1 and 2 should be deemed to be in possession since 1917 and 1921. The vendors or the plaintiffs and rather the persons whose title vested in the plaintiffs had merely a right to receive rent from the under-royts.

It was then argued that the plaintiffs who e are new purchasers had no notice of the possession of the defendants. The answer to this contention is to be found in the judgment of their Lordships of the Judicial Committee in (1934) 66 MLJ 134 (Privy Council) where it has been pointed out that all that is required of an adverse possession is that the possession should be nee vi nee clam nee precario, and that it is sufficient that the possession be overt and without any attempt, at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. Their Lordships observed that the learned Counsel for the f Crown appeared to desiderate that adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships'' opinion there is no authority for this requirement. Reliance was placed upon the decision of a Single Judge of this Court, Dhavle J., in Nalini Kanta v. Gobind Ramanuj Das AIR 1934 Pat. 458 where ho observed:

How can there be an assertion of title to operate against the landlord unless it is made to his knowledge, and how can a purchaser who only pays rent in the name of his vendor be said to assert his own title as a tenant?

Agarwala J. in a later case Raja Rajendra Narayan Bhunj Deo Vs. Nilamani Behera and Others, has pointed out that this observation is not correct as it conflicts with the decision of their Lordships of the Judicial Committee in the case referred to by me above, and if I may say so, the observation that "how can a purchaser who only pays rent in the name of his vendor be said to assert his own title as a tenant" requires further consideration in view of the decision of the Judicial Committee in Kamakaya Narayan Singh v. Ram Raksha Singh AIR 1928 P.C. 146 where their Lordships in considering the effect of marfatdari receipts refused to grant a decree for possession in favour of the landlord because the defendant was found to be in possession for over 12 years although he was paying rent in the name of h the original tenant whose tenancy had terminated by death or otherwise.

The result is that no matter whether the rights of the parties are governed by the Orissa Tenancy Act or the Transfer of Property Act, the suit of the plaintiffs ought to have been dismissed against defendants 1 and 2.

I would, therefore, allow the appeal, set aside the decisions of the Courts below and direct that the suit of the plaintiffs be dismissed. But as the defendants falsely asserted that they had boon recognised by the plaintiffs on payment of mutation fees, 1 would direct that the plaintiffs will pay half the costs of the litigation in all the Courts to defendants 1 and 2. Leave to appeal is refused.