Mahamad Ali and another v. Nimar Ali and others — 1972 DIGILAW 80 (GAU)

Judgement This appeal by defendants Nos. 1 and 2 is directed against the judgment and decree passed by the Assistant District Judge, Cachar, at Silchar in Title Appeal No. 62 of 1969. 2. The plaintiff instituted the suit for declaration that he was a bhagidar under pro forma defendant No. 3, Abdus Sattar Choudhury, in respect of the suit land which measures 3 kedars. and for recovery of khas possession thereof. He also prayed for payment of the sum of Rs. 105/- deposited in Court in connection with a proceeding under Section 145 of the Code of Criminal Procedure between the parties in respect of the suit land. His case, in brief, was that late Pratap Chandra Roy of Hailakandi town was the owner of the suit land. After his death his sons, Satish Chandra Roy and others, inherited it and they amicably partitioned the land and the suit land along with other land fell to the share of Satish Chandra Roy, who used to possess the same through different bhagidars at different times. Satish Chandra Roy, in the year 1962, sold the suit land along with other lands to pro forma defendant No. 3 and delivered possession thereof to him. Pro forma defendant No. 4, Kutub Ali, was in possession of the suit land along with some other lands as a bhagidar under Satish Chandra Roy. In 1963 defendant No. 4 executed a bhaginama in favour of defendant No. 3 and enjoyed and possessed the land on bhagi settlement. Thereafter defendant No. 4 relinquished the land in favour of the owner after one year when the plaintiff got settlement of the land as bhagidar under defendant No. 3 in 1964. The plaintiff executed a bhaginama in favour of defendant No. 3 and was in possession of the land. Thereafter defendants Nos. 1 and 2 disturbed the plaintiff in his possession and therefore he instituted M. Case No. 183/65 under Section 145, Criminal P. C. in which possession was declared by the Magistrate in favour of second party (defendants 1 and 2). The plaintiff alleged that he had grown paddy on the disputed land, which was seized and sold by the criminal Court and the sale proceeds of Rs. 105 were deposited in Court. He claimed that he was entitled to that amount. 3. Defendants Nos. 1 and 2 alone filed a joint written statement and contested the suit. The plaintiff alleged that he had grown paddy on the disputed land, which was seized and sold by the criminal Court and the sale proceeds of Rs. 105 were deposited in Court. He claimed that he was entitled to that amount. 3. Defendants Nos. 1 and 2 alone filed a joint written statement and contested the suit. Their case, in brief, is that the land in question was originally covered by C. S. Patta No. 58/61/62 which was later on converted to R. S. patta No. 72 which was again converted to 2nd R. S. patta No. 118. C. S. patta No. 58/ 61/62 was purchased by Pratap Chandra Roy from the landlord of late Kakan Mia, who was the grandfather of the defendants. When the land was purchased by Pratap Chandra Roy. Kakan Mia executed a bhaginama on July 26, 1916 and continued in possession of the land under Pratap Chandra Roy as a tenant paying rent at the rate of Rs. 30/-per year. After Kakan Mias death his son Kurman Ali, father of defendants Nos. 1 and 2, continued in possession and after Kurman Alis death the defendants Nos. 1 and 2 began to possess the land. During his lifetime, Kurman Ali sold a part of the tenanted land inherited from Kakan Mia to one Abdul Jabbar Choudhury. Defendants 1 and 2 continued in possession of the remaining portion of the land as tenants. Defendant No. 3, by a collusive document, purchased the suit land from Satish Chandra Roy but got no possession. In view of impending ceiling on land holdings. Satish Chandra Roy tried to evict the contesting defendants and sell the land, but failing to evict them, he got the aforesaid bhaginama collusively executed by the plaintiff, and set up the latter to file the suit. 4. The Munsiff framed six issues in the suit and they are as follows :- (1) Whether there is any cause of action for the present suit? (2) Whether the defendants Nos. 1 and 2 acquired jote right from the time of their grandfather for the lands over which the disputed paddy was grown? (3) Whether the disputed paddy, the price of which is also the subject-matter of this suit, was grown by defendants Nos. 1 and 2? (4) Whether the defendant No. 3 has collusively set up the plaintiff against the defendants Nos. 1 and 2? (3) Whether the disputed paddy, the price of which is also the subject-matter of this suit, was grown by defendants Nos. 1 and 2? (4) Whether the defendant No. 3 has collusively set up the plaintiff against the defendants Nos. 1 and 2? (5) Whether the defendants Nos. 1 and 2 are legally entitled to get the money in suit? (6) To what relief, if any, the plaintiff? 5. The learned Munsiff, after trial, decreed the plaintiffs suit, but on appeal the learned Assistant District Judge reversed the judgment and decree of the learned Munsiff and dismissed the plaintiffs suit. Hence this appeal. 6. Mr. A. M. Mazumdar, learned counsel appearing for the appellants, submits that the learned Assistant District Judge has misconceived the question of law involved in the case, namely, the tenancy claimed by the appellants, which was a tenancy by holding over. On the other hand, Mr. M. A. Laskar, learned counsel appearing for the plaintiff-respondent submits that the plea of holding over was not pleaded by the defendants in their written statement and therefore it cannot be raised now in second appeal; and that in any case the tenancy claimed by the defendants is not one by holding over. Mr. Laskar further submits that the appeal is concluded by findings of fact. 7. Ext. 1 is a deed of purchase by which defendant No. 3 purchased the land from Satish Chandra Roy. Ext. 2 is a bhaginama executed by defendant No. 4 in favour of defendant No. 3, Ext. 3 is another bhaginama executed by the plaintiff in favour of defendant No. 3, Ext. 5 is a copy of the order of the Magistrate passed under Section 145 of the Code of Criminal Procedure. Ext. A was a registered kabuliyat executed by Kakan Mia, grand-father of the appellants in favour of Pratap Chandra Roy on July 26, 1916. The material portion of Ext. A need be quoted : "I (Kakan Mia) have been possessing 7½ kedars of land for a long time and have my residence on it. You (Pratap Chandra Roy) have now purchased the land from my Mirasdar and I admit myself as your tenant for two years and agree to pay Rs. 4/- as rent per kedar, in total Rs. 30/- per year." The learned Munsif has considered Ext. A and other oral evidence on record and came to the finding that Ext. You (Pratap Chandra Roy) have now purchased the land from my Mirasdar and I admit myself as your tenant for two years and agree to pay Rs. 4/- as rent per kedar, in total Rs. 30/- per year." The learned Munsif has considered Ext. A and other oral evidence on record and came to the finding that Ext. A was a genuine document. He has also found that Ext. A comprised both cultivable land and homestead of Kakan Mia. He has further found that the homestead of Kakan Mia still was on the suit land in possession of the contesting defendants. It has been admitted by P. W. 2 (defendant No. 3) himself, in cross-examination that the land he purchased from Pratap Chandra Roy vide Ext. 1 also included the homestead of the contesting defendants. P. W. 2 further admits that Kakan Mia was enjoying 7½ kedars of land belonging to Pratap Chandra Roy and continued in possession by executing a registered kabuliyat in 1916. The learned Munsiff has also considered Exts. B to B (38), which are the rent receipts in respect of the aforesaid 7½ kedars land issued by the successors-in-interest of Pratap Chandra Roy. He further found that these receipts were for the period from 22-11-20 to 26-4-35. The first one dated 22-11-1920 was executed by Abinash Chandra Roy to Kakan Mia and the last one dated 26-4-1935 was issued by one K. C. Roy on behalf of the Estate of late Pratap Chandra Roy to Kakan Mia and his son Kurman Sheikh, the father of the contesting defendants. After considering these documents the learned Munsiff came to the finding that the land in suit is a part of the land which was in possession of Kakan Mia. He has further found that Kakan Mia continued to hold over possession of the aforesaid land even after stipulated period of two years mentioned in the aforesaid kabuliyat (Ext. A) and even after the death of Pratap Chandra Roy. Ultimately the learned Munsiff found as follows : "At any rate, from all the overwhelming evidence on the record in favour of the answering defendants respecting their possession over the suit land I have no hesitation to conclude that the same land was under the continuous and uninterrupted possession of the above defendants and their father Kurman Ali since the lifetime of their predecessors-in-interest. Kakan Mia, who in his turn enjoyed the lands even from before the execution of the kabuliyat in suit in favour of Pratap Chandra Roy and consequently, not only the answering defendants but even their grandfather Kakan Mia during his lifetime acquired right of occupancy in all the kabuliyat land with the coming into force of the said Assam (Temporarily Settled Districts) Tenancy Act in 1935." The learned Munsiff has also found that the plaintiff has totally failed to substantiate his claim of possession either by any document or by any oral evidence on record. He also has found that it was the contesting defendants who grew the paddy in question and therefore entitled to the sale proceeds thereof. 8. The learned Assistant District Judge, without referring to any evidence on record has simply observed that he found no evidence to hold that the predecessors of the contesting defendants were in possession of the land at the time of or after the transfer to Pratap Chandra Roy. He has observed that Ext. B series prove defendants possession only up to 1935 and he could not find that the defendants were in possession of the land after 1935. He has however, held that Ext. A created a tenancy in favour of Kakan Mia only for two years. 9. In my opinion the learned Assistant District Judge has failed to examine and find on the true legal position. It is true that Ext. A created tenancy only for two years from 26-7-1916. This document also shows that Kakan Mia was continuing in possession since before 26-7-1916 as a tenant under the vendor of Pratap Chandra Roy. Thereafter, after two years, although no deed was executed, the landlords continued to accept Kakan Mia as their tenant by accepting rents and issuing rent receipts, Ext. B series till 1935. The contesting defendants have given an explanation as to why no receipt after 1935 could be produced by them. Their explanation is that as the landlords were trying to evict the tenants and sell their land, they were accepting rents although issued no receipts. Whether or not their explanation is true, the legal position is that by operation of law they are tenants by holding over. Mr. Their explanation is that as the landlords were trying to evict the tenants and sell their land, they were accepting rents although issued no receipts. Whether or not their explanation is true, the legal position is that by operation of law they are tenants by holding over. Mr. M. A. Laskar submits that the plea of holding over was not taken by the contesting defendants in the written statement and therefore this plea should not be allowed to be urged in second appeal. Mr. Laskar is not correct on this fact. Although the defendants have not used the expression holding over, they have averred the facts, namely, that after the expiration of the period of tenancy under Ext. A, their grandfather continued in possession; he was accepted as tenant by the landlords by accepting rents and issuing rent receipts. Whether these facts, proved by the contesting defendants constitute a tenancy by holding over or not is for the Court to decide and not for the defendants to say. 10. In this connection Sec. 116 of the Transfer of Property Act and Section 109 of the Evidence Act may be considered. Section 116 of the Transfer of Property Act is as follows: If a lessee or underlessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or underlessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in S. 106." The material portion of Section 109 of the Evidence Act is as follows : "When the question is whether persons are ............... landlord and tenant ..............., and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively is on the person who affirms it." This Court in Second Appeal No. 72 of 1968 considered Section 116 of the Transfer of Property Act and Sec. 109 of the Evidence Act. and has held : ".........Once the lessee proves, either by evidence or by presumption, that he holds over the tenancy after it terminates by efflux of time, the tenancy will be presumed to be renewed from month to month or year to year as the case may be, and it is for the lessor to prove that the tenancy has ceased to exist." 11. Mr. Laskar cites two decisions before me. One is AIR 1963 Assam 137 in which this Court, considering Section 116 of the Transfer of Property Act has held : "Before Section 116, T. P. Act can be attracted it is first necessary that the lessee after the determination of the lease remains in possession and secondly, that the lessor or his legal representative either accepts rent or otherwise assents to his continuing in possession. In order that the acceptance of rent should amount to an assent of the lessor to retain the lessee in possession of the property, it has to be established that the offer of rent was made on the express ground that the lessee intended to continue his lease and when the acceptance was made it was done with the full knowledge of the nature of the offer ........." In the instant case there is no doubt, as found by the Courts below, that Ext. B receipts were issued by the landlords to Kakan Mia in respect of the suit land till 1935. The next case cited by Mr. Laskar is AIR 1949 FC 124, in which the Federal Court has held : "The tenancy which is created by the "holding over" of a lessee or underlessee is new tenancy in law even though many of the terms of the old lease might be continued in it by implication; and it cannot be disputed that to bring new tenancy into existence, there must be a bilateral act. What Section 116 contemplates is that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessees or sub-lessees continuing in occupation of the property after his interest has ceased and on the other side there must be a definite assent to this continuance of possession by the landlord expressed by acceptance of rent or otherwise. The assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it" The two decisions (supra) relied on by Mr. Laskar are not contrary to rather support the view I have taken. 12. Now as the appellants have proved that their predecessor and the landlord were acting as landlord and tenant and have proved acceptance of rents till 1935, the presumption will be that the tenancy was being renewed from year to year, the holding being agricultural and the burden, under Section 109 of the Evidence Act, is upon the lessor to prove that they do not stand in that relation or that they have ceased to be tenants. In the instant case the finding is that the plaintiff who claims through the lessor has failed to prove that he came in possession of the land at all or that relationship of landlord and tenant between the predecessors of the contesting defendants and their landlords ceased and the land was free and vacant for fresh settlement with the plaintiff. The plaintiff has relied merely on Exts. 1, 2 and 3, and the evidence of P. W. 2 (defendant No. 3) and has failed to prove that (i) the land was vacated by the previous lessee (ii) the land was free for settlement, and that (iii) he got actual possession. On the contrary the finding is he was never, and the plaintiff (defendants?) has been continuing, in possession. From the evidence proved and found, by the learned Munsiff, the only irresistible conclusion is that Exts. 2 and 3 were mere paper transactions. 13. The above considerations have negatived the submission of Mr. Laskar that this appeal was concluded by findings of facts. 14. In the circumstances the plaintiff has failed to establish his case. The learned Assistant District Judge, ignoring to consider the provisions of Section 116 of the Transfer of Property Act and Section 109 of the Evidence Act, has committed errors of law resulting in a wrong decree. 15. In the result the judgment and decree passed by the learned Assistant District Judge are set aside and the judgment and decree passed by the learned Munsiff are restored. The appeal is allowed. There will be no order as to costs. Appeal allowed.