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Gopal Chandra Das v. Satya Bhanu Ghoshal
Concise Analytical Summary of the Opinion
Factual and Procedural Background
This is an appeal against a decree in ejectment. The appeal was valued at Rs. 28-1-0 under the Suits Valuation Act and the Court Fees Act; the opinion records that this valuation does not represent the real value of the property and that, if the defendants succeeded in establishing a permanent right, the property would be worth no less than Rs. 20,000.
The appellants before the Court are Defendants Nos. 7 and 8 from the original suit. Defendant No. 7, through his benamidar (nominee) and son Defendant No. 8, purchased the tenancy interest in a holding originally comprising two plots: one of about 14 cottahs (the subject of this suit) east of Bridge Road Chetla, and another of about 1 cottah to the west. The plaintiff served notices to quit on Defendants Nos. 1 to 7 treating the tenancy as tenancy-at-will.
The appellants contested the ejectment decree in the lower courts and renewed the same contentions on this appeal. The appeal was ultimately dismissed with costs.
Legal Issues Presented
- Whether there had been a division of the original holding such that an ejectment suit in respect of a portion of the holding would lie (i.e., whether the plot sued upon was a separate holding).
- Whether, on the facts found by the lower appellate Court, a legal inference of permanent tenancy in favor of the defendants should be drawn.
- Whether the defendants and their predecessors had acquired a permanent tenancy (mokarrari mourashi) by prescription/adverse possession.
- Whether the notice to quit was invalid because it related only to a portion of the holding and because it had not been served on Defendant No. 8.
Arguments of the Parties
Appellants' Arguments
- There had been no division of the original holding; therefore, a suit for ejectment from a portion would not lie.
- From the facts found by the lower appellate Court, a legal inference of permanent tenancy should be drawn in their favour.
- The defendants and their predecessors had acquired a right of permanent tenancy by prescription (mokarrari mourashi) or adverse possession.
- The notice to quit was bad because it related only to part of the holding and because it was not served on Defendant No. 8.
Plaintiff's Position / Facts Found by the Lower Courts (as recorded by the Court)
- There was a partition of the estate by a decree in 1902: the 14-cottah plot fell to the share of the plaintiffs and the 1-cottah plot to the co-sharers; since then plaintiffs and co-sharers have been realizing rent separately from the plots allotted to their shares.
- The lower appellate Court found that tenants accepted and acquiesced in this division; rents were realized by certificate procedure without pressing objections by the defendants concerning the two plots.
- The plaintiffs proved a kabuliyat dated 1244 B.S. (1837 A.D.) that set out the commencement of tenancy terms and demonstrated that the origin of the tenancy was known.
- There was an admission by Defendant No. 8 that the interest purchased was a monthly thica charatia tenancy-at-will.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdul Hakim Khan v. Elahi Baksha Saha (judgment of Mr. Justice Chakravarti) | Identifies elements where a presumption of permanency of tenancy may be made: (1) origin of tenancy for residential purposes must be unknown; (2) existence of permanent pucca buildings known to landlord; (3) uniform payment of rent; (4) recognition of successions and transfers by landlord. | The Court applied these elements: found the 2nd and 4th elements established, the 3rd only partially (payment not uniform but increases light), and held the 1st was not established because a kabuliyat proved the origin of tenancy was known; on that basis the presumption of permanency failed. |
| Rajah of Venkatagiri v. Mukltu Narasaya (Madras High Court) | States the proposition that a person who lawfully entered possession as a tenant from year to year or for a term of years cannot, by setting up during the continuance of such relation any title adverse to the landlord, acquire by limitation a title inconsistent with that under which he was let into possession. | The Court relied on this principle to hold that the mere assertion in 1868 by admitted tenants of a mokarrari mourashi right, even if followed by possession, would not give them a greater right than they held under the lease evidenced by the kabuliyat. |
| Drobomoyi Gupta v. Davis | Referenced as one of two Calcutta cases discussed in relation to acquisition of title by assertion plus possession; the opinion notes these Calcutta decisions are not direct denials of the Madras principle. | The Court observed that the cited Calcutta cases did not displace the principle relied upon; the opinion notes that Calcutta and Bombay views may differ on whether assertion plus statutory possession suffices, but did not treat Drobomoyi Gupta as overruling the view applied here. |
| Seshamma Shettati v. Chickaya Hegade | Summarized in prior decisions: indicates that a trespasser (including a former tenant whose tenancy has ended) can by prescription acquire a tenancy right. | The Court distinguished this authority: it confirms a trespasser can acquire rights by prescription, but does not support the proposition that a lawful tenant in possession can acquire a superior title inconsistent with the tenancy by merely asserting adverse title while the tenancy subsists. |
| Birendra Kishore Manikya v. Fuljan Bibi | Holds that while a contract of tenancy is in force, either party cannot practically obtain a variation of it by persisting for a long period in an assertion that the term is different to what it really is. | The Court followed this reasoning to support the conclusion that defendants' predecessors, being in possession under the kabuliyat lease, could not convert their position into a superior title by long assertion; hence the mokarrari mourashi claim failed. |
Court's Reasoning and Analysis
The Court addressed each of the four principal contentions in turn and applied both factual findings and cited authorities to resolve them:
-
Division of the Holding:
The Court accepted the 1902 partition decree and the factual finding that plaintiffs and co-sharers were collecting rents separately from the plots allotted to their shares. Crucially, the lower appellate Court had found that the tenants accepted and acquiesced in this division. The Court considered contemporaneous conduct (rents collected by certificate procedure without pressing an objection about multiple plots and no objection to appointment) and the absence of any detrimental position of the Tewaries (appellants' predecessors). On these facts the Court concluded that tenant acquiescence was justified and therefore the 14-cottah plot became a separate holding; the first point therefore failed for the appellants.
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Presumption of Permanent Tenancy:
The Court applied the criteria summarized in Abdul Hakim Khan v. Elahi Baksha Saha. It found that the presence of permanent pucca buildings and recognition of successions/transfers (elements 2 and 4) were established; uniform payment of rent (element 3) was not strictly satisfied but increases were light. The decisive factor was element (1): whether the origin of the tenancy was unknown. The plaintiffs proved a kabuliyat dated 1244 B.S. (1837 A.D.), and the Court reproduced the commencement clause of that kabuliyat showing that the tenancy's origin was known and that the lease terms were set out. The Court held that a fresh lease after expiration of a prior term creates a new tenancy and that the kabuliyat showed the tenancy was known rather than of unknown origin. Because the origin was known, the presumption of permanence could not be made in appellants' favour. The Court also emphasized the admission by Defendant No. 8 that what he had purchased was only a monthly thica charatia tenancy-at-will, reinforcing the conclusion that permanency could not be inferred.
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Claim of Mokarrari Mourashi (Prescription/Adverse Possession):
The Court considered the 1868 assertion of such a right by the appellants' predecessors and the fact that landlords took no steps to contest it. The Court held that mere assertion by an admitted tenant, even if followed by possession for the statutory period, would not create a right superior to the tenancy under which he held. It relied on the principle stated in Rajah of Venkatagiri v. Mukltu Narasaya and further noted the distinction that while a trespasser (a person who holds adverse to title, including a former tenant who became a trespasser) may acquire rights by prescription, a lawful tenant in continuous occupation under a lease cannot convert his contractual tenancy into a superior title by asserting an adverse claim during the tenancy. The Court therefore rejected the prescription-based claim.
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Validity of Notice to Quit:
This contention depended on the success of the first contention (that the holding was not divided). Because the Court held the holding had been effectively divided and that Defendant No. 8 was the benamidar of Defendant No. 7 (and it was conceded that notice on him was unnecessary), the objection to the notice (relating to a portion only and non-service on Defendant No. 8) was not sustained. The Court treated this point as not seriously pressed and found it failed with the rest of the appellants' case.
Holding and Implications
APPEAL DISMISSED.
Direct consequences:
- The decree for ejectment appealed from is upheld; the appellants' contentions on division of the holding, presumption of permanent tenancy, prescription (mokarrari mourashi), and notice defects were rejected.
- The appeal is dismissed with costs.
Broader implications: The opinion applies established principles from cited authorities (including the criteria for inferring permanent tenancy and the principle that a lawful tenant cannot, by asserting an adverse title while the tenancy subsists, acquire a superior title by limitation). The opinion does not state that it establishes any new legal precedent beyond applying these authorities to the facts of the case.
Date or bench identification beyond what is reproduced in the provided opinion was not contained in the text supplied.
2. This is an appeal against a decree in ejectment. The appeal is valued at Rs. 28-1-0. This valuation is made under the statutory provisions of the Suits Valuation Act and the Court Pees Act and in no way represents the real value of the property. I am told if the defendants succeeded in establishing their claim to a permanent right to the land in suit the value of the property would be no less than Rs. 20,000.
3. The appellants before me are Defendants Nos. 7 and 8 in the suit.
4. The defendant No. 7 through his benamidar and son Defendant No. 8, has purchased the tenancy interest of a holding which originally comprised two plots of land. One of these is about 14 cottahs in area situated on the east of Bridge Road Chetla and that is the plot which is the subject of the present suit. The other plot is to the west of the same road and is about one cottah in area. The plaintiff served notices to quit on Defendants Nos. 1 to 7 treating the tenancy as a tenancy-at-will.
5. The appellants-defendants contested the suit and before me the same contentions were urged as had been urged in the lower Courts. The following were the four points urged: firstly, that there had been no division of the original holding and that this suit being one for ejectment from a portion of the holding would not lie, secondly, that from the facts found by the lower appellate Court the legal inference should be drawn that the defendants had a permanent tenancy; thirdly, that the defendants and their predecessors had acquired a right of permanent tenancy by prescription; and lastly, that the notice to quit was bad because it related to portion of the holding and also because it had not been served on the Defendant No. 8.
6. As regards the first point it appears that there was a partition of the estate in 1902 by a decree, of the civil Court. In that suit the 14 cottah plots which are the subject of the present suit fell to the share of the plaintiffs and the other one cottah of the holding fell to the share of the co-sharers. Since then it is found that the plaintiffs and their co-sharers were realizing rent separately from the plots allotted to their share. It is contended that this finding is not sufficient to create a division of the holding which would be effective as against the tenants. But the finding of the lower appellate Court is more than that. He has further found that the situation was accepted by the tenants of the landlords, and if this is correct and the tenants acquiesced in the division of the holding there can be no doubt that the lower appellate Court was right in deciding that the holding was effectively divided. In my opinion the facts stated are sufficient to support this decision. It is pointed out that when the plaintiffs realized rents from the defendants by certificate procedure, though an objection was taken on behalf of the defendants that there were two plots that objection was not pressed, and no objection was taken that there was no appointment made. It is found further that there is no question here that the Tewaries, that is to say, the appellant's predecessors, were placed in any awkward position. On these facts I hold that the finding of acquiescence by the tenants is justified and there was such a division that the plot of land which formed the subject of the present suit became a separate holding.
7. As regards the second point the case law on the subject has been fully dealt with in the recent judgment of Mr. Justice Chakravarti in Abdul Hakim Khan v. Elahi Baksha Saha(1). At page 62 the elements which were found to have existed in cases where presumption of permanency was made are stated as follows: First, the orgin of the tenancy for residential purposes must be unknown; secondly, the existence of permanent pucca buildings on the land built long before any controversy arises, and that to the knowledge of the landlord; thirdly, uniform payment of rent; fourthly; recognition of successions and transfers by the landlord. On the findings in the present case it would appear that the second and fourth of these elements may be said to have been established. As regards the third though the payment of rent has not been uniform the increase has been light having regard to the market value of the land. But, in my opinion, this contention must fail on the ground that the appellants have failed to establish the first of the elements that the origin of the tenancy for residential purposes must be unknown. The plaintiffs have proved a kabuliyat of the year 1244 B.S corresponding to 1837 A.D The commencement of the kabuilyat which is the important portion is as follows:
“The term of the rented land measuring about 12 cottahs standing in my name situate in mouzas Chetla Pargana Magura appertain to Kidderpore having expired I, Gopal Tewari again take the aforesaid, land on the same rent for a period of one year from Baisakh of the current year up till Chaitra for residential purposes. I shall pay rent at the rata of Rs. 3-8 sicca Rs. 3-11-9 per year according to the following monthly instalments. When the term of this kabuliyat expires and unless and until any second arrangement is made I will pay rent without any objection at the above rate.
8. For the appellants it is contended that this Kabuliyat is a confirmatory lease recognizing the existing tenancy. Although it would appear from the kabuliyat that the executant had held the land previous to its execution, it also appears that the tenancy by virtue of which he held the land previously had come to an end, since it is stated that the term had expired. A fresh lease executed after the expiration of the term of the previous lease creates a new tenancy and is not a confirmation of the previous tenancy, I would, therefore, hold that the tenancy of the appellants' predecessors commenced with this lease as evidenced by the kabuliyat and was, therefore, known. I would further hold that even if this be not treated as the commencement of a new tenancy it is strong evidence in the plaintiffs' favour to show that the terms on which the land was let to the plaintiffs were not the terms of a permanent lease. Further if I were to hold that this is a case in which I have to consider whether permanent tenancy should have to be inferred from all the facts of the case it would be very hard for the appellants to explain the admission made by Defendant No. 8 that what he had purchased was only a monthly thica charatia tenancy-at-will. Holding as I do that the origin of the tenancy is known it follows on the law as laid down in the case as already cited that no presumption of permanency should be made in the appellants' favour in the present case.
9. I now come to the contention that the appellants' predecessors obtained a mokarrari mourashi right by adverse possession. What is found is that in 1868 they asserted that right and the landlords took no steps to contest that assertion. In my opinion the mere assertion of such right by an admitted tenant would not create any right superior to that of his tenancy even though followed by possession for over 12 years. On behalf of the appellants my attention has been drawn to a decision of the Madras High Court in Rajah of Venkatagiri v. Mukltu Narasaya(2). At page 9 it is stated:
So far as this Presidency is concerned, it would seem to be well settled that a person who has lawfully come into possession as tenant from year to year or a term of years cannot by setting up, however notoriouly, during the continuance of such relation, any title adverse to that of the landlord inconsistent with the legal relation between them, acquire, by limitation, title as owner or any other title inconsistent with that under which he was let into possession.
10. The judgment further points out that this doctrine is consistent with the law in England. It then goes on to say:
We do not find the doctrine has been formulated in the other High Courts in India. In fact in Calcutta and Bombay, the view would seem to be that the assertion of the adverse right eoupled with possession for the statutory period is enough.
11. In support of this statement two Calcutta cases are cited, but neither of them contain a denial of the principle there stated. The case of Drobomoyi Gupta v. Davis(3) has been summarized and distinguished in the earlier decision of the Madras High Court, Seshamma Shettati v. Chickaya Hegade(4). There the tenants who were held entitled to plead the right by prescription became trespassers from the date of the death of the widow and continued to hold the land for statutory period professing to hold the same as permanent tenants under the lease granted by the widow. There is no doubt that a trespasser, whether he is a former tenant whose tenancy has come to an end or whether he is a tenant encroaching upon other lands of the landlord, can by prescription acquire a tenancy right. But no case of this Court has been shown to me in which it has been held that a tenant from year to year can by setting up a title adverse to that of his landlord acquire a title giving him a better right than that which he has under his contract, of tenancy: whereas the principle stated as established by the Madras High Court has been followed in Birendra Kishore Manikya v. Fuljan Bibi(5). It was there held that while the contract of tenancy is in force either party cannot practically obtain a variation thereof by persisting for a long period in his assertion that the term is otherwise than what it really is. I, therefore, hold that since the defendants' predecessors were in possession as tenants on the terms of the kabuliyat which has been proved in this case the mere assertion by them in 1868 that they had mokarrari mourashi tenancy would not give them any greater right than they held under the lease.
12. The last point was not seriously pressed. As regards the deficiency of notice in consequence of its relating to a portion only of the holding the argument stood or fell on the success or failure of the argument on the first contention. It was conceded that on the findings that the Defendant No. 8 was the benamidar of his father Defendant No. 7 it could not be urged that any notice on him was necessary. For the above reasons I hold that the appeal fails and is accordingly dismissed with costs.
13. Appeal dismissed.
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