Rajendra Prasad v. Ram Prasad Sao — 1984 DIGILAW 337 (PAT)

Judgment 1. Plaintiffs are the appellants in this First Appeal against the judgment of dismissal dt. 7-4-1966 of the plaintiffs" suit, the suit having been instituted for declaration that the plaintiffs have got raiyati interest in the suit land and for khas possession thereon by ejecting the defendants therefrom as also for mesne profits. 2. Relevant facts for disposal of the limited contentions raised before this Court may be stated as follows : - The suit properties are described in Schedules "Ka" and "Kha" attached to the plaint. The total area of the properties of Schedule "Ka" situate in two mauzas, namely, Rasuna Tunda and Khaira Tunda is 62.37 acres of land which are said to be bakast lands of these two mauzas. The properties of Schedule "kha" also relate to the above two mauzas and the total area thereof is 7.08 acres of land, these lands being gairmazarua Ahar and gairmazarua pind. These two mauzas were included in the Revenue Estate, Palganj bearing tauzi No. 20 of Hazaribagh Collectorate, commonly called as Palganj Estate. Raja Ran Bahadur Singh, grandfather of plaintiffs Nos. 4 and 5 was the then proprietor of the Palganj Estate. He gave the two mauzas, abovementioned, in thica to the original defendant No. 1 Bihari Sao on the 13th May, 1925, defendants Nos. 1 and 1(a), being his sons, defendant No. 1(b), being his widow and defendant No. 1(c), being his daughter, having been subsequently substituted in the place of defendant Bihari Sao as his heirs. This thica was temporary in nature. Exhibits-6 and 3, respectively, are Kabuliyat and patta in respect of this thica lease executed by defendant Bihari Sao and Raja Ran Bahadur Singh. This thica lease was only for a period of 24 years and it was to expire in Phalgun 1357 fasli corresponding to 4-3-1950. According to the terms of this thica lease, the lessee was to deliver possession of the thica property to the lessor after the expiry of the lease period. The lessee did not make over the possession of the thica property to the lessor and thus their possession over the same after the expiry of the thica lease became wrongful and besides being liable to be evicted, they were liable to pay mesne profits to the plaintiffs. 3. The lessee did not make over the possession of the thica property to the lessor and thus their possession over the same after the expiry of the thica lease became wrongful and besides being liable to be evicted, they were liable to pay mesne profits to the plaintiffs. 3. On the death of Raja Ran Bahandur Singh, Palganj Estate, undisputedly, came to be owned and possessed by Jagarnath Singh, since deceased, plaintiffs Nos. 4 and 5 being his sons and plaintiff No. 3 being his widow. In order to meet the cost of litigation, half of the interest in the thica property was transferred by plaintiffs Nos. 3 to 5 to plaintiffs Nos. 1 and 2, both sons of Parmeshwar Ram (defendant No. 2) by a registered sale deed dt. 27-12-1959. This is how, all the plaintiffs have combined to institute the instant suit seeking the reliefs abovementioned. 4. Defendant No. 2 Parmeshwar Ram instituted Title Suit No. 205 of 1950 in the Court of Subordinate Judge, Hazaribagh against defendant No. 1 Bihari Sao and Raja Srinath Singh (Plaintiff No. 4) alleging that he has taken raiyati settlement of the bakast lands of Schedule "Ka" by virtue of Hukumnama and Kabuliyat dt. 21-4-1931 which was to take effect after the expiry of the thica lease evidenced by Exhibit-6. Defendant No. 2 Parmeshwar Ram also claimed to have taken settlement of the properties of Schedule "Kha" by virtue of a Hukumnama and Kabuliyat dt. 26-9-1936. The suit was instituted by him for declaration of his title and confirmation of possession or in the alternative for recovery of possession and for specific performance of contract. This suit was contested by defendant Bihari Sao as also by plaintiff No. 4. The defence of Bihari Sao in his written statement, was that his thica was a permanent one and that the alleged thica in favour of Parmeshwar Ram was not genuine. His alternative plea was that he was entitled to retain possession over the property described in the Schedule attached to Exhibit-6 for a period of 75 years more by virtue of some arrangement between him and the Raja of the Palganj Estate. His alternative plea was that he was entitled to retain possession over the property described in the Schedule attached to Exhibit-6 for a period of 75 years more by virtue of some arrangement between him and the Raja of the Palganj Estate. The defence of plaintiff No. 4 in that suit was that he had not made any settlement to Parmeshwar Ram and the documents relied upon by him were not genuine and further that the alternative defence of Bihari Sao that there was extension of the thica for a period of 75 years was wrong and false. This suit was dismissed by the Subordinate Judge holding that there was no settlement with Parmeshwar Ram and that the documents relied upon by him were not genuine. The Subordinate Judge, however, found that Bihari Sao was a permanent settlee under non-resumable Dowami settlement. Being dissatisfied with the judgment, Parmeshwar Ram filed First Appeal No. 200 of 1953. Plaintiff No. 4 also appealed against that judgment, it being F. A. No. 252 of 1953. Both these two appeals were heard together and by the judgment dated 7-9-1959, this Court dismissed the appeal of Parmeshwar Ram in toto and decreed First Appeal No. 252 of 1953 holding that Bihari Sao was not a permanent thikedar but was a temporary lessee. After a few years of the disposal of the two appeals, the plaintiffs filed the instant suit which was contested only by the heirs of Bihari Sao, namely defendants Nos. 1 to 3. 5. The defence of the contesting defendants, in the instant suit, inter alia, was that the villages, abovementioned, did not form part of Palganj Estate. According to them, these defendants acquired raiyati interest in the suit land on account of their reclaiming it and it was on account of undue influence and coercion that Bihari Sao had executed the Kabuliyat (Exhibit-6). It was also their defence that Exhibits 3 and 6 were invalid documents and were inoperative because the patta was executed by a disabled proprietor when the Palganj Estate was under the management of Court of Wards. It was further averred that by remaining in possession of the suit properties as trespassers, they had acquired title over the same by adverse possession. 6. Several issues were framed by the trial Court. It was further averred that by remaining in possession of the suit properties as trespassers, they had acquired title over the same by adverse possession. 6. Several issues were framed by the trial Court. One of the issues was regarding res judicata and the finding was that the decision in F. A. 252 of 1953 did not operate as res judicata against the defendant Bihari Sao. The trial Court negatived the plea of the defendants that the above two mauzas were not part of the Palganj Estate. The next finding of the trial Court was that defendants Bihari Sao did not acquire any permanent Dowami tenancy right as a permanent tenure holder in the suit property nor had they acquired any raiyati interest therein. Its further finding was that the patta Exhibit-3 dt. 13-7-1925 and the Kabuliyat (Ext. 6) were genuine and valid documents and they were not executed either on account of coercion or undue influence nor was the patta (Exhibit-3) hit by S.12-A of the Chota Nagpur Encumbered Estates Act, 1876. It further found that the possession of Bihari Sao over the suit property became that of a trespasser since the expiry of the lease. The suit was held to be not barred by limitation. It was also held that the Palganj Estate having vested in the State of Bihar under the provisions of the Bihar Land Reforms Act, 1950 (hereinafter referred to as "the Land Reforms Act"), plaintiffs Nos. 3 to 5 had no right to recover possession of the suit properties nor can plaintiffs Nos. 1 and 2, in the facts and circumstances of this case, acquire any title over the suit properties nor are they entitled to recovery of possession. The suit was, therefore, dismissed. This is how the appellants have come before this Court in the instant First Appeal. 7. Sri S. K. Mazumdar, learned counsel for the appellants, raised only two contentions before this Court. The first contention was that the finding of the trial Court about defendant Bihari Sao becoming trespasser on the expiry of the period of the lease was not sustainable in law. 7. Sri S. K. Mazumdar, learned counsel for the appellants, raised only two contentions before this Court. The first contention was that the finding of the trial Court about defendant Bihari Sao becoming trespasser on the expiry of the period of the lease was not sustainable in law. The second contention was that the plaintiffs should be deemed to have acquired statutory tenancy in respect of the suit land by virtue of the provisions of the Land Reforms Act, S.3 of the Bihar Disqualified Owners" (Management of Property) Act, 1952 (Bihar Act II of 1955) and by virtue of the provisions of S.90 of the Indian Trusts Act, 1882 . No other contention having been raised before this Court, I proceed to dispose of these two contentions of Sri Mazumdar which were strongly refuted by Sri Krishna Prakash Sinha, learned counsel for the respondents. 8. Coming to point No. 1, both the patta and the Kabuliyat, Exhibit-3 and Exhibit-6, respectively, evidence lease of the two mauzas, namely Rasuna Tunda and Khaira Tunda for a fixed term of 24 years, the time of expiry of the lease being Phalgun 1357 fasli corresponding to 4-3-1950. Undisputedly, the lessee did not make over the possession of the two mauzas to the lessor on the expiration of the period of the thica lease and as stated in paragraph-10 of the plaint itself, the lessee continued in wrongful possession thereof entitling the lessor to mesne profits from the years 1954 to 1959 and future mesne profits till the recovery of possession for which also a claim was put forward in the plaint. S.111 of the Transfer of Property Act, 1882 (T. P. Act), provides, inter alia, that a lease of immoveable property determines by efflux of the time limited thereby. No case was pleaded by the plaintiffs in the plaint, as was argued by Sri Mazumdar, learned counsel for the appellants, before this Court, that after 4-3-1950, the lessee Bihari Sao continued in possession of the two mauzas by holding over. Obviously, no such issue was also framed in the suit. No case was pleaded by the plaintiffs in the plaint, as was argued by Sri Mazumdar, learned counsel for the appellants, before this Court, that after 4-3-1950, the lessee Bihari Sao continued in possession of the two mauzas by holding over. Obviously, no such issue was also framed in the suit. Sri Mazumdar, however, relied on S.108(q) of the T. P. Act which provides that on the determination of the lease, the lessee is bound to put the lessor into possession of the property as also on the provision of S.116 T. P. Act and submitted that the continuance of the possession of Bihari Sao on the thica property after 4-3-1950 would amount to his holding over under S.116 of the T. P. Act, his further contention being that so long as the lessee has not openly restored possession by surrender to the lessor, he cannot deny the title of the lessor. S.108 T. P. Act deals with rights and liabilities of lessor and lessee and it is in this context that S.108(q) T. P. Act provides that on the determination of the lease, the lessee is bound to put the lessor into possession of the property. This sub-section, namely, S.108(q) T. P. Act, does not, by itself, contemplate tenancy by holding over. To bring his case within the ambit of S.116 T. P. Act the lessee has to satisfy the Court about certain conditions, namely, that the lessee of the property remained in possession thereof even after the determination of the lease and further that the lessor or his legal representative accepts rent from the lessee or otherwise assents to his continuing in possession. It is only after fulfilment of these two conditions that the lease, in the absence of agreement to the contrary, shall be deemed to have been renewed, from year to year or from month to month, according to the purpose for which the property is leased. While there is no dispute about the first condition, namely, that the lessee continued in possession of the leased properties even after 4-3-1950, the question for consideration is whether the lessee has satisfactorily established the fulfilment of the other condition. The use of the word "otherwise" suggests that acceptance of rent by the landlord has been treated as a form of his giving assent to the tenant"s continuous possession. 9. The use of the word "otherwise" suggests that acceptance of rent by the landlord has been treated as a form of his giving assent to the tenant"s continuous possession. 9. This takes us to the consideration of the rent receipts Exhibits 25 series, relied upon by Sri Mazumdar, purported to have been granted to Bihari Sao by Ram Bilas Prasad, said to be the tehsildar of the Encumbered Estates, the Palganj Estate being then in the management of the General Manager of the Encumbered Estates under the Chota Nagpur Encumbered Estates Act, 1876 (Act 6 of 1876). These rent receipts were filed by the defendants but were used by the plaintiffs. Exhibit-25(a) is dt. 31-3-1950 but it was not relied upon by Sri Mazumdar, learned counsel for the appellants. The learned counsel relied only on Exhibits 25 and 25(b), which are dated 4-5-1950 and 24-7-1950, respectively. Exhibit-25 shows payment of Rs. 200.00 towards rent and cess for the year 1357 fasli and Exhibit-25(b) shows payment of rent both for the years 1357 and 1358 fasli. Ram Bilas Prasad has not been examined. The circumstances, in which these two rent receipts were granted, have to be looked into. Exhibit-13 is dated 27-2-1950. It is a notice from the General Manager of the Encumbered Estate to Ram Bilas Prasad, tehsildar, intimating to him that the lease of the thica in question is going to expire on the 30th of Phalgun 1357 fasli and, therefore, he should take possession of the two mauzas and report the action taken. Exhibit-13(a) is another notice dt. 2-4-1950 from the General Manager of the Encumbered Estate to defendant Bihari Sao. It stated that he (Bihari Sao), in collusion with and connivance with the Amlas of the Palganj Estate had paid rent for 1358 fasli to the tehsildar Ram Bilas Prasad who had no right or authority (HAK WO - AKHTIYAR) to receive the rent from him for the year 1358 fasli. Bihari Sao was, therefore, directed not to realise rent from any of the tenants of the two mauzas in question for the year 1358 fasli and in case he had so realised, he should submit account to the Encumbered Estate failing which necessary legal action will be taken against him. The genuineness of Exhibits 13 and 13(a) is not in doubt and their genuineness stands supported by Exhibit-10 series and 11 series. The genuineness of Exhibits 13 and 13(a) is not in doubt and their genuineness stands supported by Exhibit-10 series and 11 series. Exhibit-11 series show that on a note put up to the General Manager of the Encumbered Estate on 25-2-1950, the Amlas were asked by the General Manager to take possession of the two mauzas in question and in pursuance of that letter Exhibit-13 was issued. The order-sheet Exhibit- 10(d) shows, inter alia, that the tehsildar Ram Bilas Prasad, in spite of being ordered to take khas possession of the two villages, in collusion with karpardaz Babu Kali Bhawani Prasad, did not take action in this direction and did some manipulation in collusion with defendant Bihari Sao and it was in pursuance of this order that the notice Exhibit-13(a) was issued to Bihari Sao. S.3(5) of the Bihar Tenancy Act, 1885 (Act 8 of 1885) defines "Rent" as meaning whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant. Sri Mazumdar referred, in this connection, to Exhibit-2, the written statement filed by defendant Bihari Sao in the earlier title suit, being T. S. No. 205 of 1950, and submitted that even in that suit, he relied on these two rent receipts. It was, inter alia, on the basis of these two rent receipts that Bihari Sao claimed in the earlier suit that the lease stood renewed for another 78 years, a plea which was not accepted by this Court in First Appeal No. 252 of 1953. It was, inter alia, on the basis of these two rent receipts that Bihari Sao claimed in the earlier suit that the lease stood renewed for another 78 years, a plea which was not accepted by this Court in First Appeal No. 252 of 1953. In face of all these documents, namely, Exhibits-10 series, 11 series and 13 series, which are unimpeachable in character, 1 have no hesitation in holding that defendant Bihari Sao obtained the rent receipts Exhibit-25 series by bringing the tehsilder, abovenamed, in his collusion and concert without the latter having any authority to realise rent on behalf of the landlord after the expiry of the period of the lease and if this be so, as it must, any such payment of rent cannot be held to be acceptance of rent from the lessee within the meaning of these terms as used in S.116 of the T. P. Act, much less, the landlord, in these facts and circumstances, can be said to have assented to Bihari Sao continuing in possession even after the determination of the lease by efflux of time. S.108(q) or S.116 of the T. P. Act cannot, therefore, come to the rescue of the plaintiffs and the contention of Sri Mazumdar must fail. 10. In view of what has been said and discussed above, in agreement with the trial Court, I hold and find that the possession of Bihari Sao over the two mauzas in question after the expiry of the thica lease by efflux of time on 4-3-1950, was that of a trespasser and there is nothing wrong or illegal in the finding of the trial Court on this point. 11. Coming to the second point, raised by Sri Mazumdar, he relied on the provisions of sub-sec.(1)(a)(ii) and(1)(b) of S.6 of the Land Reforms Act. 11. Coming to the second point, raised by Sri Mazumdar, he relied on the provisions of sub-sec.(1)(a)(ii) and(1)(b) of S.6 of the Land Reforms Act. Sec. 6(1)(a)(ii) of the Land Reforms Act states, inter alia, that on and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting, including landlords, privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less, referred to in S.43 of the Chota Nagpur Tenancy Act, 1908, shall subject to the provisions of Ss.7A and 7B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat. The vesting took place some time in the year 1953. No doubt, Bihari Sao was continuing in possession over these two mauzas but as found above, his possession thereon after the expiry of the thica lease with effect from 4-3-1950 was that of a trespasser. In such a situation S.6(1)(a)(ii) of the Land Reforms Act cannot come to the rescue of the plaintiffs. S.6(1)(b) of the Land Reforms Act relates to lands used for agricultural and horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock. The term of the thica lease having expired on 4-3-1950 and the rent receipts Exhibits 25 series having been found to be collusive documents not attracting the provisions of S.116 of the T. P. Act, S.6(1)(b) of the Land Reforms Act cannot also come to the rescue of the plaintiffs. 12. The term of the thica lease having expired on 4-3-1950 and the rent receipts Exhibits 25 series having been found to be collusive documents not attracting the provisions of S.116 of the T. P. Act, S.6(1)(b) of the Land Reforms Act cannot also come to the rescue of the plaintiffs. 12. Sri Mazumdar next submitted that the Palganj Estate being in the management of the Court of Wards in the year 1953, when the Palganj estate vested in the State of Bihar, under S.3 of the Bihar Disqualified Owners" (Management of Property) Act, 1952, (Bihar Act 11 of 1955), the Collector shall be deemed to have taken charge of the suit properties on behalf of the plaintiffs as the suit properties will be deemed to be their statutory tenancy under S.6 of the Land Reforms Act and after release of the Estate from the Court of Wards, which took place some time in 1959, the plaintiffs shall be entitled to resume possession over the same. There is no merit in this contention. S.3 of the Bihar Disqualified Owners" (Management of Property) Act, 1952, states, inter alia, that as soon as the estate or tenure of a disqualified owner vests in the State under S.3 of the Bihar Land Reforms Act, the Collector may take charge of the other properties or the person or of the person and other properties, of such owner etc. True under S.3 of this Act, the Collector may take charge of the "other" properties. Question is whether the plaintiffs can at all be deemed to be statutory tenants in respect of the suit properties under S.6 of the Land Reforms Act? The reply will be in the negative. It is undisputed that on the date of the vesting of the Palganj Estate some time in the year 1953, the suit properties were in possession of Bihari Sao. But as found above, his possession was that of a trespasser with effect from the date of the expiry of the lease in 1950. This being the position, the plaintiffs cannot be said to be in "khas possession" within the meaning of this term as used in section 6 of the Land Reforms Act. The lease in question having stood determined by efflux of time, in the year 1950, the possession of Bihari Sao over the suit lands, as found above, will be that of a trespasser. The lease in question having stood determined by efflux of time, in the year 1950, the possession of Bihari Sao over the suit lands, as found above, will be that of a trespasser. The mere fact that the plaintiffs had subsisting title to possession over the suit land on the date of vesting would not make that land to be under their "khas possession". It is, therefore, clear that the land in suit cannot be deemed to be settled with the plaintiff by the State in accordance with S.6 of the Land Reforms Act. In the absence of any such settlement, no right over the land in suit remained with the plaintiffs after the vesting of the rights in the State by virtue of sub-sec.(1) of S.3 of the Bihar Act. The right to recover a possession from a trespasser also get vested in the State. Sub-sec.(f) of S.4 of the Land Reforms Act provides that the Collector shall take charge of such estate or tenure and of all interest vested in the State. This view stands supported by a decision of the Supreme Court reported in ILR (1962) 42 Pat 842 : ( AIR 1963 SC 454 ) Suraj Ahir V/s. Prithinath Singh, although it was a case of a mortgage and not of a lease. The decision of the Supreme Court reported in (1980) 1 SCJ 278 : ( AIR 1979 SC 1769 ) Ramesh Bajoy Sharma V/s. Pashupati Rai, does not support the case of the plaintiffs. It was a case of a tenant-at-will. Even in respect of a tenant-at-will, it was held that a cultivation of land by a tenant-at-will could not be said to be cultivation by the landlord himself or by his servant or by hired labourers. This contention, therefore, has no merit and it must fail. 13. Sri Mazumdar, learned counsel for the appellants, lastly contended that if the defendant Bihari Sao gained the advantage of becoming statutory tenant under S.6 of the Land Reforms Act in respect of the suit land by continuing in possession of the two mauzas in question till the date of vesting in the year 1953, this will accrue to the benefit of the plaintiffs under S.90 of the Trusts Act. Before a plaintiff seeks to avail of the benefits of S.90 of the Trusts Act, he has to plead and prove the requisite facts warranting the application of the Trusts Act. No such case has been pleaded in the plaint. Even Bihari Sao did not claim the suit land as statutory tenant under S.6 of the Land Reforms Act. Besides, S.90 of the Trusts Act speaks of a tenant for life, co-owner mortgagee or other qualified owner of any property and obviously presupposes the existence of fiduciary relationship. On the expiry of the period of the lease by efflux of time on 4-3-1950, Bihari Sao cannot be regarded as any of the persons referred to in S.90 of the Trusts Act. In the facts and circumstances of this case, S.90 of the Trusts Act cannot, therefore, come to the rescue to the plaintiffs. Thus this contention of Sri Mazumdar also fails. 14. No other findings recorded by the trial Court were challenged before this Court by Sri Mazumdar and I need not, therefore, discuss the materials in support of those findings. It would suffice to say that the materials available on the record justify those findings. The suit having been filed in 1960, Bihari Sao cannot claim any title to the suit land by adverse possession by remaining in possession of those lands as trespasser since after the expiry of the period of thica lease in 1950. Learned counsel for the parties did not also refer to the evidence of any of the witnesses, quite large in number, or to any document not referred to above in course of argument and it is, therefore, not considered necessary to discuss them. It would suffice to say that the evidence, both oral and documentary, do not take the case of the parties any further than found above. 15. No other contentions than those referred to above, having been raised before this Court, it must be held that there is no merit in this appeal which must fail and is accordingly dismissed. In the facts and circumstances of this case, however, there shall be no order for costs of this appeal and the parties are directed to bear their own costs.