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Case Number

Letters Patent Appeal no. 14 of 1931, from a decision of the Hon'ble Mr. Justice Wort, dated the 5th February, 1931, in Second Appeal no. 840 of 1929

Advocates

A.K Roy, for the appellant.
B.B Mukherjee and S.P Asthana, for the respondents.

Judges

Jwala Prasad
A.C.J
James, J.

Acts

section 139 read with section 139A of the Chota Nagpur Tenancy Act. Section 139
section 6 of the Chota Nagpur Tenancy Act,
Nagpur Tenancy Act (Act VI

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Smart Summary

Opinion Summary — Jwala Prasad, A.C.J. (Letters Patent Appeal)

Factual and Procedural Background

The plaintiff (appellant) is a settled raiyat with an occupancy holding in village Chakulia and homestead (udbastu) land recorded at about 1 bigha 9 kathas in plot no. 740. Fakir Rai (the defendants' father), who had earlier (in 1318) taken settlement of about 13 bighas from the proprietor for cultivation, subsequently took a verbal settlement of 15 kathas of the plaintiff's udbastu land in plot no. 740, erected buildings on it, and later died about 10–12 years before the opinion. The defendants, heirs of Fakir Rai, remained in possession of both the 13 bighas (agricultural) and the 15 kathas (udbastu) land.

The plaintiff served notice to quit treating the defendants as tenants-at-will or yearly tenants; when they did not comply he instituted a suit for ejectment in 1926. The defendants resisted, claiming they had acquired occupancy rights and asserting that the Civil Court lacked jurisdiction under the Chota Nagpur Tenancy Act (Act VI of 1908).

At trial the Munsif held for the defendants: they had acquired occupancy rights and the Civil Court had no jurisdiction. On appeal the parties conceded that the Court had jurisdiction because the disputed land was homestead (not agricultural), but the lower appellate Court nonetheless agreed with the Munsif that the defendants had acquired occupancy rights and dismissed the appeal. A single Judge of this Court dismissed the plaintiff's second appeal on the ground that the Civil Court had no jurisdiction. The plaintiff brought the present Letters Patent Appeal.

Legal Issues Presented

Whether the Civil Court had jurisdiction to try the ejectment suit in view of section 139 (read with section 139A) of the Chota Nagpur Tenancy Act, that lists suits cognizable by the Deputy Commissioner.
Whether the defendants had acquired an occupancy right (and thereby protection from ejectment) in respect of the 15 kathas of udbastu (homestead) land taken verbally from the plaintiff.
Whether the plaintiff could successfully obtain ejectment on the ground that the verbal lease was invalid because it was for an indefinite period (or might exceed five years) under section 46 of the Act, given the defendants' long possession and conduct (nazrana, building, long occupation).

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

The plaintiff treated the defendants as tenants-at-will or yearly tenants, served notice to quit, and sued for ejectment when they failed to vacate.
The lease given by the plaintiff to the defendants' father was invalid because it was verbal and did not fix any term; such a lease either lasts for the lessee's life or might exceed five years and is therefore invalid under section 46.
On that invalidity ground the plaintiff sought ejectment of the defendants.

Respondents' (Defendants') Arguments

The defendants claimed to have acquired occupancy right in the land in dispute and therefore could not be ejected.
They contended that the jurisdiction of the Civil Court to try the ejectment was barred by the Chota Nagpur Tenancy Act (specifically section 139 and related provisions), meaning such suits fall to be heard by the Deputy Commissioner.
Reliance was placed on section 78 of the Act: although the homestead was not part of the agricultural holding, they argued that because they hold other land as raiyats they should be treated, in respect of incidents of tenancy of the homestead, as raiyats (which the defendants claimed supported their position).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court's analysis proceeds stepwise and closely follows the statutory scheme of the Chota Nagpur Tenancy Act as applied to the facts:

Nature of the land: The disputed land was admitted to be udbastu (homestead) land, not agricultural land. Clause (4) of section 139 (which places certain suits to eject tenants of agricultural land under the Deputy Commissioner's exclusive jurisdiction) therefore did not apply, because it is expressly limited to "agricultural land." The Court emphasized that the land in dispute was not agricultural and so clause (4) was inapplicable.
Who can acquire occupancy right: The Court examined section 6 and Chapter IV (sections 16–20) of the Act. It found that occupancy right is acquired by a raiyat under the modes described in Chapter IV. The defendants, insofar as they held the 13 bighas settled from the proprietor, became settled raiyats as to those lands after twelve years (1924). However, the 15 kathas of udbastu land which they held under a verbal settlement from the plaintiff were held as under-tenants (under-raiyats) and did not qualify as lands held "immediately under a proprietor or immediately under a tenure-holder" as required by clause (2) of section 6. Therefore, under-tenants could not acquire the status of raiyat or occupancy-raiyat in respect of that udbastu land by the modes provided in Chapter IV; the chapter does not contemplate occupancy-right acquisition by under-tenants.
Effect of section 78: The Court addressed the defendants' reliance on section 78, which provides that when a raiyat holds his homestead otherwise than as part of his holding the incidents of his tenancy of the homestead shall be regulated by local custom or usage and, subject to these, by the provisions of the Act applicable to land held by a raiyat. The Court held that section 78 does not itself create an occupancy right nor convert an under-raiyat into a raiyat for the purposes of acquiring occupancy; it only provides that the incidents of tenancy of homestead land shall be regulated similarly. Thus section 78 did not support a conclusion that the defendants had acquired occupancy-rights in the homestead land.
Incidents of occupancy-right and available grounds for ejectment: The Court explained that sections 21–24 (incidents of occupancy-right) limit the grounds on which an occupancy-raiyat may be ejected (e.g., misuse of land not authorised by section 21, or breach of condition). Those are the exclusive incidents and grounds entitling a landlord to eject an occupancy-raiyat from such separate homestead land. The Court found that those statutory grounds (e.g., section 22) were not the grounds invoked by the plaintiff.
Validity of the verbal lease and statutory remedies (section 46): Section 46 invalidates transfers by a raiyat which exceed, or might possibly exceed, five years (without complying with statutory requirements). The plaintiff's verbal lease without a fixed term was therefore invalid or potentially void as a lease "which exceeds or might in any possible event exceed five years." Clause (4) of section 46 provides a remedy by application to the Deputy Commissioner to be put into possession within three years after the expiration of the period of the transfer, but that clause applies to transfers for a definite period where possession would revert after expiry. Because no definite term was fixed here, that clause was inapplicable.
Jurisdiction under section 139(8): The Court considered whether clause (8) of section 139 (suits in respect of which jurisdiction is conferred on the Deputy Commissioner) barred the Civil Court. It concluded that clause (8) could not bar the suit because the Act did not confer jurisdiction on the Deputy Commissioner to entertain a suit to eject an under-raiyat who holds homestead land under an indefinite or potentially permanent lease; in short, there was no specific statutory provision giving the Deputy Commissioner jurisdiction over such a case. Thus the Civil Court's jurisdiction was not barred by section 139.
Final substantive assessment — equitable considerations and laches: Although the lease was invalid under section 46 and the lease was not binding on the landlord, the Court held that the plaintiff could not take advantage of the situation where he had brought the defendants onto the land, accepted nazrana, permitted them to build and remain in possession for a long period (the record shows the defendants had held the land about 16 years or, by the plaintiff's own admission, over 10 years). The Court applied the equitable principle that a landlord who induced or acquiesced in such occupation cannot be allowed to profit from his own wrong; accordingly, despite the legal invalidity of the lease, the plaintiff was not entitled to eject the defendants.

Holding and Implications

Holding: The appeal is dismissed with costs; the plaintiff is not entitled to eject the defendants.

Implications:

Direct effect: The Civil Court's jurisdiction was held not to be barred by section 139 of the Chota Nagpur Tenancy Act in respect of this particular factual scenario (udbastu/homestead land held under a verbal/indefinite lease by under-tenants), and on the merits the plaintiff was denied ejectment because of his conduct in allowing long possession, taking nazrana and permitting buildings to be erected.
The opinion does not announce or purport to establish any novel procedural rule beyond its application of the Act to the facts; it addresses the parties' rights in this case and does not state that a broader precedent is being established.

Judgment: Appeal dismissed. (James, J. agreed.)

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Goberdhan Gorain v. Sibakall

Jwala Prasad, A.C.J:— The plaintiff is the appellant. He is a settled raiyat having occupancy holding in village Chakulia and he has also homestead land entered in the survey record-of-rights as udbastu land about 1 bigha 9 kathas in plot no. 740. The defendants' father Fakir Rai was the Station Master at Chakulia. In 1318 Fakir Rai took settlement of about 13 bighas of land from the proprietor for cultivation. Later on (the exact date is not known) he took a verbal settlement of 15 kathas of land from the plaintiff out of the udbastu in plot no. 740. He erected buildings thereon and died 10 or 12 years ago. The defendants, his heirs, are now in possession of both the raiyati land 13 bighas of which their father took settlement from the landlord and the aforesaid udbastu land 15 kathas of which their father took a verbal settlement from the plaintiff. The plaintiff served the defendants with notice to quit, treating them as tenants-at-will or yearly tenants liable to be ejected by service of notice, and the notice not having been complied with the plaintiff instituted the present suit in 1926 for ejectment. The defendants resisted the suit claiming that they have acquired occupancy right in the land in dispute and that the jurisdiction of the Civil Court to try the suit is barred by the Chota Nagpur Tenancy Act (Act VI of 1908).

The Munsif, who tried the suit, upheld the contention of the defendants, holding that the defendants had occupancy right and were not liable to be ejected and that the Court had no jurisdiction to try the suit.

The plaintiff appealed and before the lower appellate Court it was conceded by the parties that the Court had jurisdiction to try the suit as the disputed, land was the homestead land and not agricultural. But the Court below agreed with the Munsif that the defendants had acquired occupancy right and dismissed the appeal.

The plaintiff came to this Court in second appeal, which was disposed of by a single Judge of this Court who by his decision, dated the 5th February, 1931, dismissed the plaintiff's appeal. The plaintiff has, therefore, filed this Letters Patent Appeal.

The learned Judge of this Court did not decide the question of whether the defendants had or had not acquired occupancy right in the land. He dismissed the appeal upon the ground that the Civil Court had no jurisdiction to try the suit.

The case has been argued at great length and numerous authorities have been cited. After a careful consideration of those authorities it seems to me that none of them exactly applies to the facts of the present case.

The suit is said to have been barred by section 139 read with section 139A of the Chota Nagpur Tenancy Act. Section 139 gives a list of suits and applications which it says “shall be cognizable by the Deputy Commissioner, and shall be instituted and tried or heard under the provisions of this Act, and shall not be cognizable in any other Court, except as otherwise provided in this Act”. In the list of such suits and applications are those as mentioned in clause (4), viz.,

“all suits and applications (under this Act) to eject any tenant of agricultural land or to cancel any lease of agricultural land.”

Another clause which is said to bear upon this point is clause (8):

“all suits and applications in respect of which jurisdiction is conferred by this Act on the Deputy Commissioner.”

Clause (4) referred to above applies only to “agricultural land”. Admittedly the land in question is not agricultural. It is udbastu or homestead land as described in the khatian. As the plaintiff is a raiyat of the village, the incidents of his homestead land, which is not part of his raiyati land, are the same as those of his agricultural holding. The defendants' father took settlement of 15 kathas out of udbastu land subsequent to his having taken settlement of 13 bighas of land from the landlord for cultivation. The defendants' father being a raiyat within the meaning of section 6 of the Chota Nagpur Tenancy Act, having acquired 13 bighas of land from the proprietor for the purpose of cultivation became a settled raiyat after the expiry of twelve years in 1924 in respect of those lands, and in respect of 15 kathas in dispute, part of the udbastu land of the plaintiff, the defendants were under tenants and could not acquire the status of raiyat, because they did not and do not hold the land either immediately under a proprietor or immediately under a tenure-holder, which is essential under clause (2) of section 6 of the Act. Therefore, they could not acquire occupancy right in respect of the 15 kathas of the udbastu land in question. Occupancy right is acquired by a raiyat, which the defendants were not, by the modes under Chapter IV, sections 16 to 20. That chapter does not provide at all for acquisition of occupancy right by under-tenants, nor does it say that an under-tenant who holds other lands as occupancy raiyat would acquire the status of occupancy raiyat in respect of the former class of land. No doubt the defendants are tenants of the land in question and as such they would come under section 4; but as they are not tenants of agricultural land, clause (4) of section 139 would not apply nor would it bar the suit to eject them.

Reliance is placed upon section 78 of the Act and it is contended that although they are under tenants or under-raiyats in respect of the udbastu land in dispute, they acquired the status of ‘raiyat’ inasmuch as they hold other lands in the village as raiyats upon settlement by the landlord. Section 78 reads as follows:

“When a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage, and, subject to local custom or usage, by the provisions of this Act applicable to land held by a raiyat.”

The first condition for applying the section is that the homestead land should not be part of the holding of a raiyat. In this case the defendants' udbastu land is not part of their agricultural holding of 13 bighas. Therefore, the first condition is satisfied. The section does not say that he will acquire occupancy right or he will become a raiyat or an occupancy raiyat in respect thereof, but that the incidents of his tenancy of the homestead land shall be regulated by the provisions of the Act applicable to agricultural holding.

We must now come back to Chapter IV. As already observed, sections 16 to 20 refer to the circumstances under which a raiyat acquires right of occupancy. Sections 21 to 24 come under the heading “Incidents of occupancy-right” and they deal with the incidents of such right and, therefore, an under-raiyat having homestead land will not become a raiyat or occupancy-raiyat by reason of his having other land, but the incidents of his homestead land will be the same as those of the land of which he is a raiyat or occupancy-raiyat. Those incidents briefly speaking are that he shall use the land in the manner authorised by local custom or usage, and not in a manner materially to impair the value of the land or render it unfit for the purpose of his tenancy and that he shall not be ejected by his landlord except in execution of a decree for ejectment passed upon the ground that he has used the land in a manner not authorised by the preceding section 61 or that he has broken a condition on breach of which he is liable under the terms of the contract between himself and his landlord to be ejected. I need not refer to the other incidents, except that there are no incidents or right of transfer conferred upon an occupancy-raiyat by the Act. Therefore, he cannot transfer it without the permission of the landlord, except where there is a custom recognizing such transfer. The plaintiff in this case gave a verbal lease to the defendants' father without fixing any term. Section 46 says:

“(1) No transfer by a raiyat of his right in his holding or any portion thereof,—

(a) by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years,

shall be valid to any extent.”

The plaintiff gave a lease to the defendants' father without specifying any term. Such a lease is either a permanent lease or is to last during the lifetime of the lessee. In any case it is a lease which either exceeds or might possibly exceed five years and, as such, it is invalid. Clause (4) of the section provides for an application by a raiyat to the Deputy Commissioner for being put into possession of his holding or a portion thereof within three years after the expiration of the period for which the raiyat has transferred his right in his holding or any portion thereof. This is the only clause which provides for a remedy to eject an under-raiyat. This clause has no application to the present case, because it contemplates a case where the settlement is for a definite period on the expiration of which the raiyat may obtain possession of the holding through the Deputy Commissioner if he makes his application within three years. Here there was no definite term fixed and, therefore, this clause has no application.

There is no other provision in the Act for suits and applications to eject an under-raiyat who is in possession of the property under a lease exceeding five years or under a lease for any indefinite term, or under a (permanent lease. Therefore, section 139, clause (8), would not bar the suit, because in order to bar a suit or an application there must have been provision made and jurisdiction conferred by the Act on the Deputy Commissioner to entertain such a suit or application. Even if the defendants have acquired occupancy right there is no provision for a suit to eject them from their homestead land which they hold separate from their agricultural holding. Therefore, the jurisdiction of the Civil Court is not barred.

The question then is—can the defendants be ejected? It has been shewn above that the incidents of the homestead land in suit will be the same as those of the agricultural holding of 13 bighas in which the defendants have acquired the right of occupancy and the defendants can, therefore, be ejected only upon the grounds mentioned in section 22 of the Act for having used the land comprised in the holding in a manner which is not authorised by section 21, or having broken a condition on breach of which they are liable to be ejected. These are not the grounds upon which the plaintiff seeks to eject them. The ground upon which ejectment is sought is that the lease given by the plaintiff to the defendants was invalid from its inception as being for an indefinite period, that is, exceeding five years. The defendants have, according to the finding of the Court below, been holding the land for about 16 years and according to the admission of the plaintiff for over 10 years. No doubt, under clause (2) of section 46 the lease is not binding upon the landlord; but although the lease is invalid, the plaintiff who brought the defendants upon the land and took nazrana and allowed them to build the house and to remain in possession for such a long period, cannot be permitted to take advantage of his own wrong and to eject the defendants. Therefore, the plaintiff is not entitled to eject the defendants and the suit has been rightly dismissed.

The appeal is accordingly dismissed with costs.

James, J.:— I agree.

Appeal dismissed.

Goberdhan Gorain v. Sibakall

Opinion Summary — Jwala Prasad, A.C.J. (Letters Patent Appeal)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

Respondents' (Defendants') Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Goberdhan Gorain v. Sibakall

Comments