Ichharam Singh v. Nilmoney Bahida — 1908 DIGILAW 20 (CAL)

JUDGMENT 1. The circumstances, which have given rise to the litigation out of which this appeal arises, are not disputed before this Court. One Padman was an occupancy tenant under the Plaintiff-Respondent in respect of an agricultural holding in the district of Sambalpur. On the 17th March 1892, the Defendant-Appellant purchased from Padman the disputed land, which forms a portion of the occupancy holding, entered into occupation and since then has been in possession by cultivation. On the 15th May 1905, the Plaintiff commenced this action for recovery of possession upon the allegation that the transfer did not create any valid right in the Appellant and that he must consequently be treated as a trespasser. The Defendant resisted the claim on the grounds that the transfer had been effected with the consent of the predecessors of the Plaintiff, who was at that time the landlord, that subsequently the transfer had been recognised by continuous acceptance of rent, and that, if the Plaintiff was not prepared to recognise the validity of the transfer, his claim to ejectment was barred by limitation. The Court of first instance found that the transfer had not been effected with the consent of the then landlord but that there had been a subsequent recognition by receipt of rent. In this view of the matter, the Munsif dismissed the suit. Upon appeal the District Judge held that the landlord had not at any time received rent from the transferee and that consequently the Defendant had not acquired the status of a tenant. Accordingly, the District Judge allowed the appeal and made a decree for ejectment in favour of the Plaintiff. The Defendant has now appealed to this Court and, on his behalf, the decision of the District Judge has been assailed, substantially, on two grounds, namely, first, that under sec. 45, cl. 3 and sec. 47 of the Central Provinces Tenancy Act of 1898, the Civil Court had no jurisdiction to entertain an action for ejectment on the ground that the transfer had been effected without the consent of the landlord, and, secondly, that upon the facts found, the claim for recovery of actual possession was barred by limitation. In support of the first branch of this contention, the learned vakil for the Appellant has contended that, as sec 46, sub-sec. In support of the first branch of this contention, the learned vakil for the Appellant has contended that, as sec 46, sub-sec. 3 prohibits the transfer of an occupancy holding either in whole or in part and makes the transfer voidable at the instance of the landlord, the procedure laid down in sec. 47 for recovery of possession must be followed by the landlord. This contention appears to us to be clearly well-founded and is supported by the provision of sec. 95, which shows that the jurisdiction of Civil Courts is barred in cases in which Revenue officers are authorized to take cognizance under the Act. This is consistent with the elementary principle that when statutory rights and liabilities have been created and jurisdiction has been conferred upon a Special Court for the investigation of matters, which may possibly be in controversy, such jurisdiction is exclusive and cannot concurrently be exercised by the ordinary Courts [Bhandi Singh v. Ramadhin Roy 10 C.W.N. 991: s.c. 3 C.L.J. 359 (1905)]. The view we take of the effect of sec. 47 is further supported by the decisions of the Court of the Judicial Commissioner of the Central Provinces in the cases of Dayaram v. Saligram (1903) 16 C.P.L.R. 135, Chamru v. Tulsidin (1904) 16 C.P.L.R. 49 and Daji v. Morreshwar (1905) 1 Nag, L.R. 112. In answer to this argument, the learned vakil for the Respondent contended, first, that as this question was not raised in the Courts below, the point ought not to be allowed to be taken in this Court, and, secondly, that as in the case before us, the transfer in question took place in 1892, the provisions of the Central Provinces Tenancy Act of 1898 have no application. The first branch of this contention is manifestly untenable. The objection taken relates to the jurisdiction of the Court and, if, as the Appellant contends, there was an inherent absence of jurisdiction, the objection may be taken at any stage of the proceedings. The second branch of the contention however must prevail. As already observed, the transfer, the validity of which is impeached, took place in 1892. The Rent Law then in force in the Central Provinces was contained in Act IX of 1883 as amended by Act XVII of 1889. The provisions of sec. The second branch of the contention however must prevail. As already observed, the transfer, the validity of which is impeached, took place in 1892. The Rent Law then in force in the Central Provinces was contained in Act IX of 1883 as amended by Act XVII of 1889. The provisions of sec. 43 of the Tenancy Act of 1883 made a transfer of an occupancy holding void as against the landlord and there was no remedy provided by the Act for recovery of possession through the machinery of the Revenue Courts. It was consequently held in a series of cases decided in the Court of the Judicial Commissioner of the Central Provinces that the Civil Courts had jurisdiction to deal with the matter and to entertain a suit for declaration, if after an attempted invalid alienation the tenant still continued in occupation (as in the case of mortgages without possession) or to entertain a suit for ejectment, if the tenant at the time of or after alienation parted with possession of his holding [Chatter Singh v. Narain (1889) 3 C.P.L.R. 70 Kasiram v. Behari (1884) 4 C.P.L. 49, Narain Das v. Gulab Chand (1884) 4 C.P.L.R. 59 and Chandrabhan v. Deo Chand (1890) 4 C.P.L.R. 172]. It follows, consequently, that, when the transfer took place in 1892, the Plaintiff-landlord acquired a right to sue the Appellant in the Civil Court. Can it be successfully contended that this right was taken away by the provisions of the Tenancy Act of 1898. In our opinion, the question must be answered in the negative. The change, which was made in the law in this respect in 1898, was not one of procedure only; the privileges of the land-lord were materially curtailed and if we were to give retrospective operation to the new Act in this respect, the result would be to affect the substantive rights already acquired, when the repealed Act was in force. We must, consequently, hold that the matter in controversy before us must be tested by the provisions of sec. 43 of the Tenancy Act of 1883 and not by those of sec. 47 of the Tenancy Act of 1898. This view is supported by the decision In the case of Kala Tehari v. Narain (1900) 13 C.P.L.R. 148. This conclusion, however, necessarily raises the question as to the effect of sec. 43 of the Tenancy Act of 1883. 43 of the Tenancy Act of 1883 and not by those of sec. 47 of the Tenancy Act of 1898. This view is supported by the decision In the case of Kala Tehari v. Narain (1900) 13 C.P.L.R. 148. This conclusion, however, necessarily raises the question as to the effect of sec. 43 of the Tenancy Act of 1883. That section merely declares that a transfer of an occupancy holding is void as against the landlord, unless it is made with his consent. This refers obviously to transfers of entire holdings. It does not lay down that a transfer of a portion only of an occupancy holding is void or entitles the landlord to exercise his right of re-entry either as regards the entire holding or the portion transferred. As pointed out in the case of Chatter Singh v. Narayan (1889) 3 C.P.L.R. 70, so long as the original tenancy subsists, the landlord has no right to reenter and oust the persons who are on the land by license from the tenant; the transfer may not be binding upon the landlord and he may not be obliged to recognize It, but so long as the original tenancy continues, the landlord has clearly no right of re-entry, for so long as the tenancy intervenes, he is not brought Into direct relationship with the transferee. The same view was taken in the cases of Govinda Das v. Madho Prasad (1888) 3 C.P.L.R. 9 and Tara Chand v. Shambha (1892) 6 C.P.L.R. 49. Reference may also be made to the analogous principle now well-settled as applicable to cases under the Bengal Tenancy Act, namely, that the sale of or parting with a portion of an agricultural holding Is not a ground for forfeiture, so that where a tenant has transferred a portion of this holding but continues in possession of the remainder and pays the entire rent, neither he nor the transferee is liable to be ejected [Kabil Sardar v. Chandra Nath ILR 20 Cal. 590 (1893)]. It was pointed out, however, on behalf of the Respondent that, in the case before us, since the transfer by the original tenant, the landlord has accepted from him a reduced rent. but, in our opinion, this circumstance is of no assistance to the Respondent. 590 (1893)]. It was pointed out, however, on behalf of the Respondent that, in the case before us, since the transfer by the original tenant, the landlord has accepted from him a reduced rent. but, in our opinion, this circumstance is of no assistance to the Respondent. The effect of a mere acceptance of reduced rent by the landlord does not clearly extinguish the original tenancy nor does it amount to the creation of a new tenancy. We must consequently hold that under sec. 43 of the Central Provinces Tenancy Act of 1883 the present Plaintiff has acquired no right to eject the Defendant from that portion of the holding which he purchased in 1892 and of which he has since that date continued in occupation, It follows accordingly that, although the first contention of the Appellant, namely, that under sec. 47 of the Tenancy Act of 1898 the Civil Court has no jurisdiction to entertain the present suit, must be overruled, the Respondent successfully meets the objection only upon a ground which establishes that he has no cause of action on the basis of which he can claim any relief. 2. The second point taken on behalf of the Appellant raises the question, whether the suit is barred by limitation. It has been found concurrently by the Courts below that the Appellant entered into occupation in 1892 and has since then been in possession by cultivation of the land. The Courts below have, however, overruled the plea of limitation on the ground that, as the Defendant pleads a tenancy, there can be no adverse possession and that consequently the claim for recovery of actual possession by ejectment of the Defendant is not barred by limitation. This view is, in our opinion, erroneous and cannot be supported. The Courts below have, however, overruled the plea of limitation on the ground that, as the Defendant pleads a tenancy, there can be no adverse possession and that consequently the claim for recovery of actual possession by ejectment of the Defendant is not barred by limitation. This view is, in our opinion, erroneous and cannot be supported. As was pointed out by this Court in the case of Ishan Chandra Mitra v. Ramranjan (13), possession of a limited interest in immoveable property may be just as much adverse for the purpose of barring a suit for the determination of that limited interest, as adverse possession of a complete interest in the property operates to bar a suit for the whole property; but such adverse possession of a limited interest, though a good plea to a suit for ejectment, is good only to the extent of that interest; the nature and effect of possession must depend upon the nature and extent of the rights asserted by the overt conduct or express declaration of the person relying on it: there can be no acquisition by adverse possession of an absolute title, when nothing but a limited interest has been asserted. It is obvious therefore that, although the Defendant has not set up an absolute (13) 2 C.L.J. 125 (1905). title for the statutory period and has not consequently acquired by adverse possession such absolute title, he has yet acquired by prescription the limited interest which he has set up, namely, the interest of a tenant. It consequently follows that it is too late for the Plaintiff-landlord now to seek to eject the Defendant as a trespasser; his title to recover actual possession is barred, although his title to receive rent has not been extinguished. The second branch of the contention of the Appellant must therefore be supported. The result is that this appeal must be allowed, the decree of the District Judge reversed and that of the Court of first instance restored. The suit will stand dismissed with costs in all the Courts.