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Radha Nath Seal v. Haripada Jana
Factual and Procedural Background
The litigation concerns title to and possession of a tank known as “Gangasagar” situated in Plot No. 4302. The original tenants of the property were Kshirode Charan Duley and his brothers, later represented by Defendants 4-6. In 1955 the plaintiff purchased whatever right, title and interest the Duleys held for Rs 1,800. The landlord had earlier served the Duleys with a notice to quit and, according to the defence, they surrendered possession to B. Sen (Defendant 3), trustee of the Bipinbehari Sen Memorial Trust, in April 1953. B. Sen thereupon settled the property on the present appellant (Defendant 1) the same year.
Criminal proceedings under Section 145 CrPC found Defendant 1 in actual possession, prompting the plaintiff to file the present suit seeking a declaration of title, recovery of possession and mesne profits. The trial court dismissed the suit; the first appellate court (Subordinate Judge) affirmed that dismissal. In second appeal the Calcutta High Court reversed the concurrent findings and decreed the suit in favour of the plaintiff. The defendant landlord (now appellant) obtained special leave to appeal to the Supreme Court, which rendered the opinion summarised here.
Legal Issues Presented
- Whether the tenancy held by the plaintiff’s predecessors (the Duleys) was a mere jalkar/fishery right or a raiyati tenancy governed by the Bengal Tenancy Act, 1885, which had ripened into a permanent tenancy after twelve years.
- If the tenancy was permanent, whether the landlord’s notice to quit (Ext. 3) validly terminated it, and whether any surrender under Section 86 of the Bengal Tenancy Act occurred.
- Whether, in second appeal, the High Court exceeded the limits of Section 100 of the Code of Civil Procedure by re-evaluating findings of fact made by the first appellate court.
- Consequently, whether the plaintiff acquired any enforceable right, title and interest by purchasing the Duleys’ tenancy rights in 1955.
Arguments of the Parties
Appellant's Arguments
- The High Court, in second appeal, was barred by Section 100 CPC from interfering with findings of fact concerning the nature of the tenancy.
- The tenancy was merely a jalkar right that had been validly terminated by the landlord’s notice to quit (Ext. 3).
- Even if the notice were defective, the Duleys had voluntarily surrendered their tenancy under Section 86 of the Bengal Tenancy Act, extinguishing any rights the plaintiff could have purchased.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court first examined the High Court’s treatment of the evidence. It noted the High Court had relied on documentary material overlooked by the first appellate court and had corrected “assumptions of fact” made below. On the admitted and proved facts, the High Court was entitled to determine the legal character of the tenancy; therefore its intervention did not violate Section 100 CPC.
The Court accepted the High Court’s conclusion that the tenancy between B. Sen and the Duleys was governed by the Bengal Tenancy Act and had become permanent after twelve years from 1322 B.S. Under the Act, a permanent tenancy could be terminated only in the manner prescribed by the statute. The landlord’s notice to quit (Ext. 3) was held insufficient to effect such termination, and the appellants could not demonstrate otherwise.
The appellants’ new contention—that the tenancy had been surrendered under Section 86 of the Act—had never been raised before the High Court or framed as an issue in the trial court. Investigation of the factual prerequisites for surrender was therefore impermissible at the Supreme Court stage.
Because the tenancy had not been lawfully terminated or surrendered, the Duleys retained permanent tenancy rights at the time of their 1955 transfer to the plaintiff. Accordingly, the plaintiff acquired valid title, and the High Court’s decree in his favour was correct.
Holding and Implications
DISMISSED WITH COSTS.
The Supreme Court affirmed the Calcutta High Court’s decree declaring the plaintiff’s title and right to possession. The decision restores possession to the plaintiff and obliges the defendants to yield the tank and mesne profits; it does not establish any new precedent beyond reaffirming the limited scope of Section 100 CPC and the statutory protections afforded to permanent raiyati tenancies under the Bengal Tenancy Act.
A.N Grover, J.:— This is an appeal by special leave from a judgment of the Calcutta High Court. It arises out of a suit for declaration of title to property which was a tank known as Gangasagar in Plot No. 4302 and for recovery of its possession together with mesne profits.
2. Kshirode Charan Duley and his brothers who were represented in the suit by Defendants 4 to 6 were the original tenants of the property. The plaintiff claimed that he had purchased the right, title and interest of the original tenants, namely, the Duleys by a kubala for a consideration of Rs. 1800 in the year 1955. It appears that the owner of the property served a notice on the successors of Duleys to quit the same and it was alleged that they had surrendered possession to B. Sen, Defendant 3 who was the trustee of Bipinbehari Sen Memorial Trust in April 1953. Thereafter B. Sen, Defendant 3 granted a settlement to the present appellant who was impleaded as Defendant 1 in the suit. This happened in the year 1953.
3. Certain criminal proceedings took place between the parties under Section 145 wherein it was held that Defendant 1 was in actual possession of the property. This led to the filing of the suit by the plaintiff who claimed his right through Duleys who were the original tenants. The main defence of Defendant 1 and Defendant 2, his son was that the predecessors of the plaintiff had merely the jalkar rights which had been validly terminated by a notice to quit with effect from the end of Chaitra 1359 B.S The trial court dismissed the suit and an appeal to the Subordinate Judge also failed. The High Court in second appeal decreed the suit.
4. The points which were agitated before the first appellate court were:
(1) What was the nature and purpose of the lease of the predecessors of the plaintiff? Had they merely jalkar right or right of tenancy in the suit property?
(2) Did the plaintiff acquire any right, title or interest by virtue of his purchase from the pro forma defendants?
5. The first appellate court held that the grant was merely of tank, fisheries and not that of raiyati with a right of occupancy. The question of relinquishment of possession by the Duleys after the expiry of the lease was also considered but the finding given was that it was Defendant 3, namely, B. Sen who was in actual possession and not the plaintiff, of the property in dispute. It is difficult to find in the judgment of the first appellate court any clear decision on the second point relating to the acquisition by the plaintiff of any right, title and interest by virtue of purchase of rights from Duleys.
6. The High Court considered the evidence in detail and came to the conclusion that the tenancy which subsisted between B. Sen, Defendant 3 and the Duleys was governed by the Bengal Tenancy Act, 1885 (hereinafter called “the Act”). It became a permanent one after 12 years from the year 1322 B.S It was, therefore, held that the plaintiff vendor was in possession of the disputed property as a raiyat with a right of occupancy. If that was so the tenancy could not have been terminated by means of the notice, Ext. 3. The view of the courts below that the plaintiff did not get any right, title and interest by virtue of Ext. 1 because of the termination of the tenancy by the notice, Ext. 3 was found to be erroneous.
7. The learned counsel for the appellants has sought, firstly, to assail the conclusion of the High Court with regard to the nature of the tenancy which subsisted between B. Sen and Duleys. It has been urged that under Section 100 of the Civil Procedure Code, it was not open to the High Court to interfere with questions of fact. The High Court has pointed out that certain material evidence in the shape of documents was not considered by the first appellate court and a good deal of assumptions of fact were made. Apart from that on proved and admitted facts it was open to the High Court to find what the nature of the tenancy was.
8. It is clear from the judgment of the High Court that no attempt was made to argue that the relationship between the predecessors of the plaintiff and the landlord was governed by the provisions of any enactment which dealt with non-agricultural tenancies. Once the tenancy was governed by the Act and it became permanent under its provisions the only manner in which it could come to an end was the one provided by the Act.
9. It has not been shown to us that the notice, Ext. 3 which was served on the predecessors of the plaintiff was sufficient in law and complied with the provisions of the Act to bring to an end the permanent tenancy. The only argument that has been pressed on behalf of the appellants on this point is that after the notice had been served on the predecessors of the plaintiff they had surrendered their tenancy rights. This could be done under Section 86 of the Act. The provisions of Section 86 were never pressed before the High Court. They require examination of and investigation into several other matters which it is not possible to go into at this stage. Even the question of surrender was never sought to be put into issue in the trial court.
10. We find no merit in this appeal which is dismissed with costs.
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