Harak Chand Babu v. Charu Chandra Singha — 1910 DIGILAW 350 (CAL)

JUDGMENT 1. This appeal arises out of a suit brought by the Plaintiffs-Respondents for a declaration of their right as putnidars of lot Dharai and in Mouzah Debagram to, and for possession of 54 bighas 8 cottahs of chowkidari chakran land in that village, which land had been resumed by the Local Government under sec. 48 of Act VI, B. C, of 1870, on the 18th February 1899 and had been transferred to the Defendants Nos. 1 to 3 as landlords of the mouzah. The Defendants Nos. 1 to 3 had subsequently, settled the lands with Defendant No. 5 in derogation of the Plaintiffs' rights. The putni was in the first instance granted by the zemindars in favour of Kailash Nath Rai on the 21st Pous 1255. It was sold under Reg. VIII of 1819 on the 2nd Jaista 1288 and purchased by the Plaintiffs' father, Babu Roma Prosanna Singha; again on the 1st Jaista 1302 it was sold for arrears of rent under Reg. VIII of 1819 and purchased by Plaintiffs' paternal uncle, Babu Debendra Prosanna Singha, benami for Plaintiffs' father. Afterwards Plaintiffs' father and after his death the Plaintiffs had been in possession of the putni. 2. The suit was contested by Defendants Nos. 1 and 3 and Defendant No. 5. They denied the right of the Plaintiffs to the putni alleging that Babu Debendra Prosanna Singha was the actual putnidar, and that Plaintiffs by their conduct were estopped from asserting the contrary. They alleged that the chowkidari chakran lands were not covered by the original putni lease and so the putnidars had no right to them. They also pleaded that the Plaintiffs' suit was barred by limitation because it had not been instituted within 3 or even 6 years from the date when the Collector transferred the lands to the Defendants Nos. I to 3 as landlords. They denied that the Plaintiffs had suffered any loss by the resumption and alleged that they as landlords had suffered loss and were entitled to get rents as profits to the extent of the loss which they had sustained, even, if the Plaintiffs should be held to be entitled to possession of the lands. 3. I to 3 as landlords. They denied that the Plaintiffs had suffered any loss by the resumption and alleged that they as landlords had suffered loss and were entitled to get rents as profits to the extent of the loss which they had sustained, even, if the Plaintiffs should be held to be entitled to possession of the lands. 3. The Court of first instance held that the Plaintiffs' father, and after his death the Plaintiffs, were the putnidars and that Babu Debendra Prosanna Singha was merely their benamdar, and that the Plaintiffs were not estopped from asserting their title to the lands in suit. Further the Sub-Judge held that the chowkidari chakran lands were covered by the putni pottah and that the Plaintiffs were entitled to recover the lands on condition that they paid to the proprietors the extra assessment of revenue imposed by Government and in support of this conclusion he relied on the case of Kazi Newaz Khoda v. Ram Jadu Dey I. L. R. 34 Cal. 109 : s. c. 11 C. W. N. 201 (1906).; also he held that the suit was not barred by limitation as it came under the purview of Art. 142 of Sch. II of the Limitation Act; and that the evidence proved that the Plaintiffs had suffered loss by the resumption of the lands and that there was no evidence to prove that the Defendants Nos. I to 3 had suffered any loss. He also held that the Plaintiffs were entitled to recover mesne profits from the Defendants for 3 years before suit. 4. Accordingly he gave the Plaintiffs a decree declaring their title to the lands in suit and directing that they should recover khas possession from the Defendants with mesne profits for 3 years, and costs. 5. On appeal the judgment and decree of the Court of first instance were affirmed. Defendants Nos. I to 3 have appealed to this Court. 6. In support of the appeal the first point taken before us by the learned Counsel for the Appellant has been, that the lower Court erred in law in holding that the lands in suit were covered by the putni pottah. Defendants Nos. I to 3 have appealed to this Court. 6. In support of the appeal the first point taken before us by the learned Counsel for the Appellant has been, that the lower Court erred in law in holding that the lands in suit were covered by the putni pottah. Both of the lower Courts have found on a careful consideration of the terms of the lease that the whole of lot Dharai with all rights in the lands in it was covered by the lease and the Court of first instance has referred to specific passages in the lease in support of this conclusion. The lease has not been translated or placed before us, though passages out of it have been read. In our opinion the view taken by the lower Courts is correct and is amply supported by the passages in the lease to which the Court of first instance has drawn attention. 7. In support however of this point another contention has been advanced. It has been argued that at the time of the permanent settlement the chowkidari chakran lands were appropriated by Government for public purposes and so ceased to form part of the estate over which the landlord could exercise rights of possession and control. The putni in the present case was created on the 3rd January 1849 and the lands were not resumed by Government and transferred to the landlord till the 18th February 1899, that is to say, till 50 years afterwards. During that period the putnidars were at most entitled to a part of the services of the chowkidars, and after resumption in 1899 that right was lost by them under the provisions of sec. 55 of Act VI, B. C., of 1870. In these circumstances the effect of the transfer of the lands to the landlord by the Collector was to seperate them from the parent estate and to grant a new title to them in favour of the proprietor of the estate. In support of this contention the case of Kashim Sheikh v. Prasanna Kumar Mookherjee I. L. R. 33 Cal. 596 (1906) is relied on. 8. In our opinion this contention, though it may be held to be in some respects supported by reason, cannot prevail. In support of this contention the case of Kashim Sheikh v. Prasanna Kumar Mookherjee I. L. R. 33 Cal. 596 (1906) is relied on. 8. In our opinion this contention, though it may be held to be in some respects supported by reason, cannot prevail. The terms of the putni lease in the case relied on are not stated in the judgment and it may be that they supported the conclusion that the chowkidari chakran lands were not covered by the putni lease. In the present case however we hold that the chowkidari chakran lands must be held to be covered by the putni lease, and, that being so, we see no reason to differ from the view adopted by this Court in a long series of decisions, of which the case of Kazi Newaz Khoda v. Ram Jadu Dey I. L. R. 34 Cal, 109: S.C. 11 C. W.N. 201 (1906). is one, that the putnidar is entitled to recover possession of the resumed chowkidari chakran lands under the terms of his lease on condition of his agreeing to a fair and reasonable settlement with the landlord. We are unable to agree that the provision of sec. 55 of Act VI, B. C, of 1870, can be held to deprive the putnidars of the right which they had under their lease nor do we think that the period during which the lands had been held as chowkidari chakran lands can be taken into consideration as affecting injuriously the title of the putnidar. 9. Next it has been contended that the lower Court erred in law in holding that the suit was not barred by limitation of either 3 or 6 years under Art. 113 or 120 of Sch. II of the Limitation Act. It has been suggested that even if the suit cannot be taken to be one for specific performance of the terms of the contract it ought to be held to be a suit for compensation for the loss of the services of the chowkidars. In our opinion the limitation applicable to the present suit is that provided by Art. 142 or 144 of Sch. II of the Limitation Act.. We hold that the suit is in fact one to recover possession of the lands on the basis of the title created in favour of the putnidars by the putni lease. In our opinion the limitation applicable to the present suit is that provided by Art. 142 or 144 of Sch. II of the Limitation Act.. We hold that the suit is in fact one to recover possession of the lands on the basis of the title created in favour of the putnidars by the putni lease. This is the view which has been taken by this Court in the case of Bunwari Mukunda Deb v. Bidhu Sundar Thakur I. L. R. 35 Cal. 346 : s c. 12 C. W.N. 469 (1908). and has been followed in Appeal from Appellate Decree No. 2550 of 1907 decided on the 8th April 1910 and in other similar cases. In our opinion therefore this objection based on the ground of limitation must also fail. 10. Thirdly it has been contended that as the Plaintiffs' father was the defaulting putnidar when the putni was sold for arrears of rent under Reg. VIII of 1819 on the 1st Jaista 1302, he was by the provisions of sec. 9 of the Regulation precluded from bidding at the sale and from purchasing the putni. The purchase at that sale could not therefore have been made by Babu Debendra Prosanna Singha benami for the Plaintiffs' father so as to confer on the latter any title to the putni. Also it has been pointed out that since the sale the landlords have brought suits against Babu Debendra Prosanna Singha, as the putnidar for arrears of rent, and recovered decrees, and therefore that Plaintiffs cannot be allowed to come forward as putnidars to bring the present suit. Further it was argued that the Plaintiffs were not entitled to bring the suit as they were not registered putnidars in the landlord's sheristha. In support of this last contention the case of Gossain Mungal Doss v. Roy Dhunput Singh 25 W. R. 152 (1876). was relied on. That case was however dissented from in the cases of Chunder Pershad Roy v. Shuvadra Kumari Saheba I. L R. 12 Cal. 622 (1886) and Joy Krishna Mookhopadya v. Sarfannessa I. L. R. 15 Cal. 345 (1888) and in our opinion the absence of registration in the zemindar's sheristha cannot be taken to bar the Plaintiffs from bringing the present suit if on the evidence it be proved that they have established their title as putnidars. 11. 622 (1886) and Joy Krishna Mookhopadya v. Sarfannessa I. L. R. 15 Cal. 345 (1888) and in our opinion the absence of registration in the zemindar's sheristha cannot be taken to bar the Plaintiffs from bringing the present suit if on the evidence it be proved that they have established their title as putnidars. 11. We are also unable to accept the contention that the sale of the putni at which the Plaintiffs allege that their father purchased through a benamdar Babu Debendra Prosanna Singha was void, because under the provisions of sec. 9 of Reg. VIII 1809 the Plaintiffs' father being the defaulter was precluded from bidding. The sale was not void but voidable, and this view is supported by the decision of this Court in the case of Matangini Debya v. Prasanna Moyi Debya 3 C. L. J. 93 (1905). The sale not having been avoided the right to the property remains in the actual purchasers. 12. Both the lower Courts have held that the Plaintiffs' father was the actual purchaser and that Babu Debendra Prosanna Singha was only his benamdar. The sale was in 1895 and the evidence, to which the Judge of the first Court refers in his judgment, clearly proves that since that time the Plaintiffs' father and after his death, the Plaintiffs have been in actual possession of the putni by collecting rents from the tenants, and that rents have been paid to the landlords through the agent of the Plaintiffs. This latter fact is supported by the evidence of one of the Defendants' witnesses, and, whether the receipts were granted in the name of Debendra Prosanna Singha or not we agree with the lower Courts in holding that the landlords were throughout aware that the Plaintiffs were in actual possession as putnidars and acknowledged them as such. This point therefore also fails. 13. We agree therefore with both the lower Courts in holding that the Plaintiffs have established their titles as putnidars and that they are entitled to recover possession of the lands in suit on accepting a fair and reasonable settlement from the landlords. 14. The only point which then remains for consideration is what terms in the present case should be regarded as fair and reasonable. 14. The only point which then remains for consideration is what terms in the present case should be regarded as fair and reasonable. It has been held by this Court in the case of Hart Narain Mozumdar v. Mukund Lal Mundal 4 C W. N. 814 (1900) that the terms of the settlement must depend on the conditions under which the putni tenure was originally created. It is clear that the landlord is entitled to recover from the putnidar the amount assessed by the Collector under sec. 49 of Act VI, B. C, of 1870, which the landlord has to pay to the chowkidari fund, that amount being half the present rental fixed on the lands. The landlord is also entitled to be recouped for any additional expenses arising out of the transfer of the lands, or the obligation to pay that sum yearly to the fund. It is not suggested in the present case that the profits arising from the chowkidari chakran lands were taken into account when the rent of the putni was fixed, and it is hardly open to doubt that the rents or profits arising from all lands in the estate have increased considerably in the course of years since the chowkidari chakran land was first appropriated by Government for public purposes. We are of opinion that to the whole of this increase the putnidars cannot claim to be entitled, but that the landlord is entitled to a fair share of these profits, which in fact may be regarded as a windfall to the estate. This indeed is the view which has been taken by this Court in the case of Rajendra Nath Mukherjee v. Hira Lal Mukherjee Since reported in 14 C. W. N. 995 (1910).. The principles by which a Court should be guided in determining the fair share of the profits to which the landlord is entitled have been laid down by this Court in the case of Hari Narain Mozumdar v. Mukund Lal Mundal 4 C. W. N. 814 (1900), which have been approved in the case of Kazi Newaz Khoda v. Ram Jadu Dey I. L. R. 34 CaL 109 : s. c. 11 C. W. N. 201 (1906).and Gopendra Chandra Mitter v. Tara Prasanna Mukherjee Since reported in 14 C. W. N. 1049 (1910). decided on the 4th April last. 15. decided on the 4th April last. 15. In the present case the lower Courts have not gone into this question but have awarded to the landlords only the amount of the assessment payable to the chowkidari fund made by the Collector under sec. 49 of Act VI, B. C., of 1870. The ruling on which the Court of first instance relies to support this view does not in our opinion lay down any strict rule on the point, but in fact approves of the principle laid down in the case of Hari Narain Mozumdar v. Mukund Lal Mundal 4 C. W. N. 814 (1900).. We are however relieved from the necessity of remanding the suit to the lower Courts to have fair and reasonable terms for the settlement with the landlords fixed as both parties have accepted, and we think very wisely, the suggestion made by us that, in order to avoid further delay and expense on litigation, fair terms may be taken to be that the half of the rental of the lands in suit fixed by the Collector remaining after the half payable by the landlord to the chowkidari fund has been deducted, should be divided into two equal parts and that the landlord should receive one half and the putnidar retain the other half. These terms though merely fixed by rule of thumb for the convenience of the parties in this suit appear to us to be fair and reasonable to both landlords and putnidars. 16. The result, therefore, is that we confirm the judgments and decrees of the lower Courts on all points with this exception that we direct that the Plaintiffs do recover possession of the lands in suit with the mesne profits, for three years before the date of institution of this suit and from that date up to the date of delivery of possession, which may be determined after deducting from the rental as determined by the Collecter one-half share as assessed under sec. 48 of Act VI, B. C, of 1870, and payable by the landlord to the chowkidari fund together with a further 1/4 share to be paid to the landlords as additional rent by the putnidars in respect of the lands in suit, and the putnidars will be entitled to continue in possession of the lands for the future on payment of such 1/2 and 1/4 shares yearly to the landlords. The parties will be entitled to and will pay costs in this and all the lower Courts in proportion to their final success and failure in the suit.