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Raja Reshee Case Law v. Satish Chandra Pal

Calcutta High Court

Apr 11, 1930

Judgment

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Structured Summary of the Opinion (Mitter, J.)

Factual and Procedural Background

These two consolidated appeals (Second Appeal No. 114 and No. 115) were brought by the plaintiff-landlord concerning suits for rent relating to two separate mokarari tenures held by the defendant-respondent under the plaintiff. The two appeals arise from different suits (Suit No. 24 corresponding to Appeal No. 114; Suit No. 27 corresponding to Appeal No. 115) and were dealt with separately by the Court.

Appeal No. 114 (Suit No. 24): The tenure in question was created by a pattah of 1867 under the plaintiff's predecessor. The pattah (allegedly) covered 2,877 bighas with a rent of Rs. 359-10-0. The finally published Record of Rights showed 2,877 bighas within the defendant's tenancy while contiguous lands were recorded as the plaintiff's khas lands. The defendant brought Title Suit No. 360 of 1923 concerning 105 plots recorded as the plaintiff's khas land and obtained a decree for possession (affirmed on appeal). The plaint in the rent suit included the lands for which the defendant obtained the decree. The defendant pleaded that dispossession by the landlord of portion of the tenancy entitled him to suspension of rent. The Subordinate Judge originally granted a decree to the plaintiff (leaving the point about inclusion of lands in the plaint open); the Additional District Judge of Midnapore reversed and dismissed the plaintiff's suit, which led to this appeal.

Appeal No. 115 (Suit No. 27): The plaintiff claimed apportionment of rent for 715 bighas 14 cattas at a yearly rental of Rs. 208-14-0 (an earlier prayer for enhanced rent in respect of further land was withdrawn). The tenure was created by a patta of 1869; some mal lands were let at Rs. 208-14-0 and certain paikan lands at Rs. 8-8 (total Rs. 217-6-0). Government resumed the paikan lands in 1906 and settled them with the zamindar, who in turn settled with some ex-paiks and third persons. A 1916 suit for rent (excluding the paikan lands) was dismissed on the ground of partial dispossession and suspension of rent; that dismissal was sustained on appeal. In 1918 the defendant's predecessor sued for declaration of title to the paikan lands and succeeded; that judgment was affirmed on further appeal (decisions in the High Court are referred to in 1925 and 1926). The present rent suit was brought in September 1925 during pendency of a High Court appeal. The trial Court awarded apportionment to the plaintiff for mal lands, but the Additional District Judge reversed and dismissed the plaintiff's suit; the plaintiff appealed (Second Appeal No. 115).

Legal Issues Presented

Appeal No. 114: Whether dispossession of a portion of a tenant's demised lands by the landlord (or predecessor) entitles the tenant to suspension of rent and, if so, whether suspension must be total or only proportionate (depending on whether the rent is a lump sum or a rate per bigha determined by the pattah).
Appeal No. 114: Whether the plaintiff landlord's failure to produce the pattah at trial affects the plaintiff's entitlement to rent and the appropriate relief (proportionate abatement or dismissal of suit).
Appeal No. 115: Whether the plea of res judicata (from an earlier apportionment suit dismissed and upheld by the High Court) bars the plaintiff's claim for apportionment of rent for the period in question.
Appeal No. 115: Whether the decree obtained by the defendant (title/possession against third-party lessees) operates as restoration of possession sufficient to defeat the tenant's right to suspension of rent for dispossession of a portion of the tenancy.
Appeal No. 115: Whether apportionment of rent may be claimed for periods subsequent to the final decision in the High Court.

Arguments of the Parties

Appeal No. 114 — Appellant (Plaintiff Landlord) Arguments

The lower appellate Court's conclusion that certain administrative acts (an entry in the Record of Rights made "in a particular way") amount to eviction cannot be sustained in law.
In any event, there should not be entire suspension of rent because the rent is not a lump rental but a sum payable per bigha (i.e., proportionate abatement should apply).

Appeal No. 114 — Respondent (Defendant Tenant) Arguments

The defendant contended that there has been dispossession by the landlord (including a dispossession of the widow of Raja Prithipal) and therefore the tenant is entitled to suspension or abatement of rent; inclusion of the dispossessed lands in the plaintiff's present suit does not amount to restitution of possession.

Appeal No. 115 — Appellant (Plaintiff Landlord) Arguments

Res judicata should not apply because circumstances had materially changed by reason of subsequent litigation (including the 1918 suit and later High Court proceedings), so the earlier decision dismissing apportionment does not bar the present suit covering the claimed period.
The decree obtained by the defendant against the lessees (in the title suit) must be considered a restoration of such possession as the defendant is entitled to, and therefore the plaintiff is entitled to a decree for rent (apportionment) for the mal lands.

Appeal No. 115 — Respondent (Defendant Tenant) Arguments

The altered circumstance argument is misplaced because the period for which apportionment is claimed (April 1922 to April 1926) pre-dates the final High Court decision, and the conditions during that period remained unchanged.
The doctrine that obtaining a decree for possession alone does not defeat a tenant's right to suspension of rent unless the landlord takes effective steps to restore possession — thus res judicata and absence of actual restoration bar the plaintiff's claim for apportionment in respect of the period in question.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kadambini Dasi v. Kashi Nath Biswas [1870] 13 W.R. 338	Holds that zamindars were precluded from suing tenants for rent for the period of dispossession even though the tenant had recovered a decree with mesne profits for that period; obtaining a decree for possession does not by itself enable the landlord to sue for rent covering the dispossessed period.	The Court relied on this authority to support the proposition that a decree for possession obtained by a tenant does not automatically defeat the tenant's right to suspension of rent; effective restoration by the landlord is required.
Chandra Kanta v. Ramanath [1911] 6 I.C. 478	Affirms the same or similar principle as Kadambini Dasi — that mere decree for possession is not enough to defeat suspension rights; the landlord must take effective steps to restore possession.	The Court cited this decision (Mukerjee and Carnduff, JJ.) as a recent adoption of the earlier principle and applied it in holding against the plaintiff where no effective restoration had been shown.
High Court decisions referred to (Greaves & Panton, JJ.; Greaves & Mookerjee, JJ.)	Used as prior adjudications on whether disputed paikan lands were included within tenures and whether suspension of rent followed from partial dispossession; decisions served as res judicata on the issues and the relevant time periods.	The Court treated the earlier High Court decisions (including a 16 November 1925 decision by Greaves & Panton, JJ., and a 15 June 1926 ruling by Greaves & Mookerjee, JJ.) as binding/authoritative for the periods they covered: the decision of 16 Nov 1925 was held to leave the state of affairs unchanged during the claimed period (April 1922–April 1926) and thus res judicata barred the present claim for that period. The Court also observed that apportionment might lie for periods after the final High Court decision (15 June 1926).

Court's Reasoning and Analysis

The Court analyzed the two appeals separately and applied legal principles to the factual record and procedural history in each case. The Court's analysis focused on (i) whether dispossession had occurred and what relief that entitles the tenant to, (ii) the nature of the rent (lump sum or per unit) as determined by the pattah, (iii) the effect of prior adjudications (res judicata) on the present claims, and (iv) whether a decree for possession obtained by the tenant equates to effective restoration of possession for rent-collection purposes.

Appeal No. 114:

The Court rejected the lower appellate Court's reasoning to the extent it rested on the proposition that an administrative act in the Record of Rights by a landlord's agent necessarily amounted to eviction; that proposition "cannot be sustained in law." However, that finding did not stand alone: the District Judge had also found factual dispossession (including dispossession of the widow of Raja Prithipal by the plaintiffs' predecessor) and that the state of dispossession continued.
Given those factual findings, the Court concluded it was difficult to say there had been no dispossession that would entitle the defendant to abatement or suspension of rent. The critical factual/legal determinant, however, is whether the pattah fixes rent as a lump sum or as a rate per bigha.
Because the pattah had not been proved by the plaintiff, the Court set aside the lower appellate judgment and directed a rehearing so that the plaintiff may be allowed to produce and prove the pattah. If the pattah shows rent payable per unit (per bigha), proportionate abatement should be granted; if it shows a lump rental, the plaintiff's suit should be dismissed. If per-unit rent is established, the lower appellate Court is to determine the extent of dispossession on the evidence (or further evidence) and grant proportionate relief accordingly.
Costs were awarded to the respondent for the plaintiff's failure to produce the pattah in proper time.

Appeal No. 115:

The Court examined the plea of res judicata. The plaintiff argued that subsequent litigation (including the title suit and the later High Court decision) changed circumstances so as to remove the bar. The Court emphasized temporal scope: the present suit sought apportionment for the period April 1922 to April 1926, and the final High Court decision occurred only on 15 June 1926.
The Court accepted the lower appellate finding that the state of affairs during the claimed period remained the same as when the earlier apportionment suit was decided (Greaves & Panton, JJ., 16 Nov 1925). Therefore the plea of res judicata barred the claim for that period. The Court noted that apportionment would lie for rent subsequent to the High Court's final decision (i.e., subsequent to 15 June 1926), but not for the earlier period now in dispute.
On the second ground (whether a decree for possession equates to restoration), the Court relied on established authority (Kadambini Dasi and Chandra Kanta) to hold that merely obtaining a decree for possession does not defeat the tenant's right to suspension of entire rent for eviction from a portion of the demised premises. The tenant's right to suspension continues until the landlord takes effective steps to restore possession (e.g., by executing the decree and actually obtaining possession), or otherwise establishes actual restoration to the tenant.
The Court noted the absence of evidence that the plaintiff had given notice to tenants that rent should be payable to the defendant or that the plaintiff had ceased collecting rents; likewise there was no evidence the defendant had obtained actual possession through execution. Thus the plaintiff had not shown effective restoration sufficient to defeat suspension rights. For these reasons both grounds of appeal failed.

Holding and Implications

Final holdings:

Appeal No. 114: The Court set aside the lower appellate Court's dismissal and remanded the matter for rehearing. The plaintiff is to be given an opportunity to produce and prove the pattah; depending on its terms the lower appellate Court must grant proportionate abatement (if the rent is per unit) or dismiss the plaintiff's suit (if the rent is a lump sum). The respondent is entitled to costs of this appeal because the plaintiff failed to produce the pattah in proper time.
Appeal No. 115: The Court dismissed the appeal. The Court held that the plea of res judicata bars apportionment for the period claimed (April 1922–April 1926) because the relevant High Court decision had not finally altered the state of affairs for that period; apportionment may, however, be claimed for periods subsequent to the High Court's final decision (after 15 June 1926). The appeal was dismissed with costs.

Implications:

Where dispossession of a portion of rented land is established, whether a tenant is entitled to total suspension or only proportionate abatement depends on the contractual/settlement terms in the pattah — specifically whether rent is a lump sum or a rate per unit of measurement. Proof of the pattah is decisive for that determination.
Res judicata will bar repeat claims for apportionment that cover periods already adjudicated, and changed circumstances must be shown to fall outside the time-frame of earlier adjudications. A subsequent final decision can permit apportionment for periods after that decision, but cannot retroactively negate a prior bar for an earlier period unless facts indicate otherwise within the relevant time-frame.
Obtaining a decree for possession in a title suit does not by itself restore possession for purposes of defeating a tenant's right to suspension of rent; the landlord must take effective steps to restore the tenant to the possessory rights recognized by the decree (for instance, by executing the decree and obtaining physical possession or otherwise manifesting effective restoration).
No new broad precedent displacing these established principles was created by this opinion; the Court applied established authorities and directed procedural remediation (rehearing) where key documentary proof (the pattah) was missing.

Disposition: Appeal No. 114 remanded for rehearing with directions as stated above; Appeal No. 115 dismissed. Costs awarded as indicated in the opinion.

Show all summary ...

Mitter, J.:— These two appeals by the plaintiff landlord arise out of two suits for rent in respect of two mokarari tenures held by the defendant-respondent under the plaintiff. Second Appeal No. 114, relates to Suit No. 24, and No. 115 relates to Suit No. 27. The appeals will have to be dealt with separately as the facts of the two cases are different.

2. I will take Appeal No. 114 first. In this case the tenure was created by a pattah of the year 1867, under the predecessor of the plaintiff by which the defendant's predecessor held 2877, bighas and paid a rent of Rs. 359-10-0. In the finally published Record of Rights 2877 bighas were shown within the tenancy of the defendant, but the contiguous lands were shown in possession of the plaintiff as his khas lands. The defendant brought Title Suit No. 360 of 1923 with respect to 105 plots which were recorded as plaintiffs khas land in the settlement record. Defendant obtained a decree for recovery of possession of lands which were included within the Thak boundary and this decision was affirmed on appeal to the District Judge. The plaint in the present suit included the lands for which defendant obtained a decree for possession. The plea of the defendant in the present suit is that as there has been a dispossession by the landlord from a portion of the tenancy lands there ought to be total suspension of rent. The defendant objected that all the lands for which he recovered the decree had not been included in the plaint. The Subordinate Judge who tried the case in the first instance left the question as to whether all the lands were included in the plaint or not open, but gave a decree to the plaintiffs. On appeal the Additional District Judge of Midnapore has reversed the decision and dismissed plaintiff's suit. Hence the present appeal.

3. The reasoning of the lower appellate Court has been subjected to considerable criticism by the learned advocate for the appellants and it is said that the learned Judge's conclusion that the:

“act of the landlord's agent in, having of record of right made in a particular way with the intention of depriving the tenant of the engagement of demised premises amounts to eviction”

cannot be sustained in law. This is so. If this finding had stood alone the judgment could not be supported, but the District Judge has found that the widow of Raja Prithipal, who is the adoptive mother of the present defendant, was dispossessed by the plaintiffs' predecessor and that state of things continues up till now and the inclusion of the dispossessed land in the present suit cannot amount to restitution. On these findings it is difficult to say that there has been no dispossession as to entitle the defendant either to proportionate abatement or suspension of rent. It is contended for the appellant that in any, event there should not be entire suspension as the rent is not a lump rental, but so much rent per bigha. Unfortunately the pattah has not been proved in this case. In these circumstances we set aside the judgment of the lower appellate Court and direct it to rehear the case after allowing the plaintiff an opportunity of proving the pattah. If on the terms of the pattah, it appears that rent was not a lump rental, but was based on a rate of so much per bigha, he will grant proportionate abatement. If on the other hand it is a lump rental plaintiff's suit will be dismissed. In case the pattah discloses that the rent is so much per unit of measurement the lower appellate Court will determine the extent of the dispossession on the evidence before the Court or such further evidence which the parties may produce.

4. The respondent is entitled to costs of the appeal as the plaintiff did not produce the pattah in proper time.

5. I will now deal with Appeal No. 115 which arises out of a Suit No. 27, as has been previously stated.

6. In this suit plaintiff claims apportionment of rent for 715 bighas 14 cattas of land at a yearly rental of Rs. 208-14-0. There was originally also a prayer for enhanced rent in respect of 288 bighas and odd but this prayer was withdrawn and nothing more need be said about this.

7. It appears that the tenure was created in 1869 by a patta. Certain quantity of mal lands were let out at a rental of Rs. 208-14-0 and certain paikan lands were also let out at a rental of Rs. 8-8 the total rental being Rs. 217-6-0.

8. In the year 1906 the Government resumed the paikan lands and settled the same with the zamindar (plaintiff's predecessor). The zamindar settled these lands, with some ex paiks and third persons.

9. In 1916 plaintiff brought a suit for rent of the lands covered by the patta excepting the paikan lands. The defendant contested the suit and contended that the suit was not maintainable as the paikan lands were not included and the jamas had been split up. It was held in this suit that the disputed paikan jaigir lands were included within the tenures of the plaintiff and as there was partial dispossession by the zamindar there must be suspension of rent and the suit was dismissed and this decision was ultimately upheld by the High Court.

10. In 1918 defendant's predecessor-in-interest Saraswati Deyi, brought a suit in the Court of the Subordinate-Judge of Midnapur for declaration of title to the paikan lands as belonging to her on the basis of the patta and she was entitled to get khas possession against the lessee defendant as the landlords (predecessors of the plaintiff in the present suit) had no right to grant a lease of the same. The suit was decreed and the present defendants' predecessor's title under the patta was declared and she was entitled to get rent from the lessees of the present plaintiffs. An observation was made in the course of the judgment that the defendants predecessor-in-title was liable to pay additional rent for the paikan land to the zamindar, but the question and the terms and conditions under which defendant was entitled to retain possession of the paikan lands was not decided in that suit and it was said that it might be decided in a suit properly framed for the purpose. This decision was affirmed by the District Judge and ultimately by the High Court in second appeal by Greaves and Mookerjee, JJ. in appeal from appellate Decree No. 2655 of 1922 on 15th June 1926.

11. The present suit was brought on 15th September 1925 during the pendency of the appeal in the High Court from the decision in the suit brought by the defendants' predecessor for her declaration of title to paikan lands.

12. The defence in this suit is that there should be total suspension of rent as it has been decided that the rent is a lump rental for both mal and paikan lands and as dispossession of the paikan lands still continues the suit must fail. It was contended for the defendants that the decision in a previous suit for apportionment of rent operates as res judicata and bars plaintiff's claim. This defence was overruled by the trial Court and plaintiff was awarded a decree for rents for the mal lands.

13. An appeal was taken by the defendant to the Additional District Judge of Midnapur who has reversed the decision of the Subordinate Judge and dismissed plaintiff's suit for rent of the mal lands.

14. Second Appeal No. 115 has consequently been preferred by the plaintiff. The lower appellate Court rested its decision on the plea of res judicata and held that the decision dismissing plaintiff's previous suit for apportionment in Suit No. 29 of 1922 which was upheld by the High Court (see the decision of Greaves and Panton, JJ., dated 16th November 1925 bars plaintiff's claim for apportionment on the principle of res judicata. It has also held that there has been no restoration of possession to the defendant of the paikan lands. The appellant contends (i) that in view of the result of litigation of 1918 and 1922 circumstances have materially changed so as to preclude the operation of the principle of res judicata in the present case; (ii) that the mere obtaining of the decree by the defendants against the plaintiff and the lessees of the plaintiff of the land must be considered as restoration of the defendants to such possession of the disputed lands as he is entitled to have and the plaintiff is entitled to have his rent suit decreed.

15. The argument on the first point is put in this way: On 30th June 1926, when the Subordinate Judge passed his decree in this suit, the High Court had finally decided that the defendant would be entitled to recover possession of the paikan lands from the lessees of the plaintiff and this was a circumstance which did not exist when the decision in the previous suit for apportionment was given which is sought to be pleaded as a bar to the present suit. It is said therefore that the plea of res judicata would not be available in the altered circumstances. To this argument the respondent replies by saying that the alteration of circumstances cannot affect the decision in the present suit for apportionment is claimed in respect of rent from April 1922 to April 1926 and that is the time which must be looked to for the purpose of considering whether the bar of res judicata was removed or not.

16. During that period the condition of things remained the same as before and it is said that mere fact of the affirmance of the decree of the lower Courts does not make any change in the circumstance. There seems to be much force in this contention of the respondent. The lower appellate Court finds that there is nothing on the record to show that plaintiff has since the decree for possession in favour of defendant given up possession of the lands dispossessed or that the defendant has got possession of the lands through Court or otherwise. The learned District Judge held in our view rightly that the state of things that existed on 16th November 1925, when Greaves and Panton, JJ., delivered their judgment in the previous apportionment case still continues and that the question of dispossession and suspension of rent was barred by the principle of res judicata. It is contended on behalf of the appellant that there are certain observations in the judgment of Greaves and Panton, JJ., which would seem to suggest that after the final decision of the High Court in the title suit brought by the defendant there could not be a consolidated rent in respect of the mal and paikan lands. That may be so but the final decision of the High Court was not given till 15th June 1926 and the whole of the period for which apportioned rent is claimed in the present suit is prior to the final decision in the High Court. In this view we are of opinion that the plea of res judicata cannot be avoided with reference to the claim in the present suit. We may however observe in passing that a suit for apportionment of rent will lie in respect of rent subsequent to the decision of the High Court, that is for the period subsequent to 15th June 1926. The first ground therefore fails.

17. With regard to the second ground taken it appears clear on the authorities that the mere obtaining of a decree for possession by the tenant is not sufficient to defeat a tenant's right to suspension of entire rent for eviction from a portion of the demised premises. That right continues until effective steps are taken by the landlord to restore possession of the lands to the defendants. Reference may be made in this connexion to a very early decision in the case of Kadambini Dasi v. Kashi Nath Biswas . [1870] 13 W.R 338., where Jackson and Glover, JJ., laid it down that the zamindars were precluded from suing the tenants for rent on account of the period of dispossession even though the tenant had recovered a decree with mesne profits for the said period. This view has also been adopted in recent times as will appear from the decision of Mukerjee and Carnduff, JJ. in Chandra Kanta v. Ramanath . [1911] 6 I.C 478.. It is argued however for the appellant that the defendant in order to evade the payment of rent is not seeking to execute the decree against the tenants in actual possession. There is no evidence in the present case that the plaintiff landlord has given notice to the tenants that rent should henceforth be payable not to him but to the defendant or that the plaintiff has ceased collecting such rents. The plaintiff must take such steps to surrender to the defendant such possession as they are entitled to have as against the tenants by reason of the decree in the title suit brought by the defendant. For the reason given above both the grounds of appeal fail and this appeal must be dismissed with costs.

Graham, J.:— I agree.

B.M/R.K

18. Appeal dismissed.