Md. Serajul Hoque v. Dwijendra Mohan Sen Gupta

The Judgment of the Court was as follows:—

This is an appeal on behalf of some of the Defendants in an action of ejectment on declaration of the Plaintiffs' title. The learned Munsif who tried the suit declared the Plaintiffs' title as landlords, but dismissed the claim for ejectment on the ground that the suit had not been properly constituted. On appeal, the learned Subordinate Judge reversed the decision, and decreed the suit in full. The Defendants were directed to remove the huts and structures from the lands within three months, failing which the Plaintiffs were given liberty to take khas possession on removal of the same at the cost of the Defendants. Hence the present appeal by four of the Defendants, Nos. 1 to 4, the other contesting Defendant No. 5 and pro formâ Defendant No. 6 being joined as Respondents.

The defence in the suit was mainly two-fold: first, that the suit was defective for want of parties in so far as the entire body of co-sharer landlords had not been represented, and secondly, that the tenancy was a kayemi or permanent one, and that the Defendants were not, therefore, liable to ejectment. As regards the nature of the tenancy, both the Courts below held against the Defendants, but on the first point, as already stated, the learned Munsif gave effect to their contention, and dismissed the suit in conseqence, while the lower Appellate Court took a different view. Both the grounds of attack have been renewed in the present appeal.

The lands in dispute are two plots, dags Nos. 693 and 694 of the last Revisional Settlement of Chittagong, and are admittedly situated in two mahals described as lakheraj bahali jimbas, No. 14573 jimba jona feringee and No. 14325 jimba jomada baru. They are recorded in the settlement proceedings in tenants' Khatians Nos. 163 and 167 respectively.

It may be taken as an accepted fact that the proprietary or landlord's interest in these mahals was vested at one time in one Kailash Chandra Dutt and that it then passed to Jatra Mohan Sen Gupta by different conveyances executed in his favour by the sons of Kailash. It appears that Kailash also held some raiyati holdings in these mahals in the name of one Krishna Chandra Dutta, father of pro formâ Defendant No. 6, and these too were conveyed to Jatra Mohan Sen Gupta. Jatra Mohan thus acquired not only the superior right in the two mahals, but also a raiyati interest in a number of holdings within the same. He afterwards sold one-fourth of his interest, both maliki and raiyati, to one Hara Kinkar, and this was subsequently purchased by one Sarada Kripa Lala in execution of a money decree against Hara Kinkar. Sarada Kripa Lala in his turn transferred his interest to one Jatindra Lal Sen, Plaintiff No. 7 in the present suit, by kobaln, Exhibit No. 7.

The remaining three-fourths interest which Jatra Mohan retained devolved on his death on his five sons whom he left surviving, the eldest being Jatindra, and the other four being Fanindra and Plaintiffs Nos. 2 to 4. Jatindra has since died, and his one-fifth share is now held by his two sons, Plaintiffs Nos. 5 and 6. He left a widow, Mrs. Nellie Sen Gupta, who is Plaintiff No. 1 in the suit, and it is said that though she did not inherit anything from her husband, she acquired the interest of Fanindra at a Court sale in execution of a money decree against the latter. The sale certificate is Exhibit 9A, the date of the sale being the 10th February, 1937.

According to the Plaintiffs' case, therefore, at the date of the suit the landlords' interest was fully represented by them,—to the extent of three-fourths by the surviving sons and grandsons of Jatra Mohan Sen Gupta, Plaintiffs Nos. 2 to 6, along with Mrs. Nellie Sen Gupta, Plaintiff No. 1, in the right of Fanindra, and as regards the remaining one-fourth by Plaintiff No. 7, Jatindra Lal Sen, as transferee from Jatra Mohan. This was contested by the Defendants who alleged that neither Plaintiff No. 1 nor Plaintiff No. 7 acquired any interest in the disputed lands by her or his purchase, and they contended accordingly that as neither Fanindra nor the vendor of Jatindra Lal Sen had been made parties to the suit, the claim to ejectment was not maintainable.

Taking first the objection raised regarding Mrs. Nellie Sen Gupta's purchase, it is obvious that the question must depend on a construction of the sale certificate, Exhibit 9A, which is the foundation of her title; it has to be seen whether or not it includes the superior interest in the two mahals in which the lands in dispute are admittedly situated. The sale certificate comprises quite a number of items which are set out in the schedule under different lots, but it is common case that these lands, if they are covered by the document at all, are to be found in lot No. 2. It is also agreed that whatever right, title and interest the judgment-debtor had in the properties conveyed passed by the sale.

The contention on behalf of the Defendants is that lot No. 2 comprises only the tenancy interest in a number of holdings which are referred to therein under their khatian numbers as recorded in the Revisional Settlement. As to the mention of the two mahals by number and name, No. 14573 jimba jone feringhee and No. 14325 jimba jomada baru, it is said that this was only a part of the description of the raiyati holdings which were sold, or to put it otherwise, that the object was merely to identify the plots by reference to the taluks in which they were included. There was no question of conveying the taluks. The Plaintiffs, on the other hand, maintain that what passed under this lot was the whole of the superior interest which Fanindra had in the mahals or jimbas themselves, and that the khatian numbers which were mentioned were mere surplusage.

It is not clear from the document itself whether the khatian numbers are given with reference to the landlord's or to the tenants' khatians of the Revisional Survey. The disputed plots, plots Nos. 693 and 694, as already stated, are recorded in tenants' khatians Nos. 163 and 167, and it is admitted on both sides that they are to be found in landlords' khatians bearing numbers 162 and 166 respectively. In the enumeration of khatian numbers under lot No. 2, however, neither of these last two numbers, 162 and 166, appears, so that if the reference is taken to be to the landlords' khatians, none of the disputed plots can be said to have been included. If, on the other hand, as the Plaintiffs say, the numbers are those of the tenants' khatians, it will appear that in that case only one of the plots will have been indicated, namely, plot No. 693 which is recorded in tenants' khatian No. 163, and not the other plot No. 694 mentioned in the corresponding khatian No. 167, as lot No. 2 refers to No. 163, but not to No. 167.

It is not surprising that the Courts below have differed as to the true construction of the sale certificate. The language used in describing the property sought to be conveyed is certainly not free from ambiguity. The argument has centred round lot No. 2, but reading the document as a whole, one fact seems to be clear enough, namely, that it purports to convey not merely the maliki but also the inferior tenancy interest of the judgment-debtor, and this seems to me to supply the key to the correct interpretation. As already stated, so far as the two mahals referred to in lot No. 2 are concerned, Fanindra inherited from his father in his one-fifth share not only the superior title to the mahals, but also the raiyati interest in certain holdings comprised therein, and it is quite reasonable to hold, therefore, that whatever interest Fanindra thus had in the taluks themselves or in the raiyati holdings was included under this item in the sale certificate. The superior interest was indicated by reference to the two jimbas by name and number, and the tenants' interest by reference to the khatian numbers.

As for the purposes of the present objection, it is only material to consider whether Plaintiff No. 1 acquired the landlord's interest in respect of the two disputed plots, the non-inclusion in lot No. 2 of the khatian number relating to one of them, plot No. 694, will not make any difference. In my opinion, on a true construction of the sale certificate it must be held that such landlord's interest did pass to Plaintiff No. 1 by the sale. It follows, therefore, that she was not only a proper but a necessary party and the non-joinder of Fanindra cannot affect the maintainability of the suit at all. This disposes of one part of the first objection.

As regards the other part of the objection, which relates to the title of Plaintiff No. 7 in respect of Jatra Mohan Sen Gupta's one-fourth interest under Exhibit 7, being the conveyance he took from Sarada Kripa Lala, neither of the Courts below has given effect to the Defendants' plea on this head. The learned Munsif finds that one of the numbers given in this document, 13425, is evidently a mistake fov 13429, so that the mahals which passed by this conveyance must; be held to include both Nos. 13429 and 13424 and as the settlement khatians themselves show, these are the old numbers of the two taluks bearing present numbers 14325 and 14573 respectively. This fully establishes the identity of the mahals in question in which Plaintiff No. 7 acquired his interest, and the Appellants have failed to show any reasons why I should reject the finding of the trial Court in this respect. This part of the objection, therefore, must also fail.

There remains now to consider the substantial defence on the merits, which raises the question as to the nature of the tenancy. The first point which the learned Advocate for the Appellants made before me was that the trial Court had wrongly rejected an old unregistered lease granted by one Janu Sahib to one Madhu Aya, which may be said to have created the tenancy in suit, holding that it was inadmissible in evidence for want of registration. This lease, it was submitted, would have conclusively shown the permanent character of the tenancy.

It appears that the document was executed on the 26th Pous, 1226 M.E, corresponding to the 8th January, 1865, that is to say, after the first Registration Act (Act XVI of 1864) had come into force, and there can be no doubt that a lease of this description was made compulsorily registrable under this Act. In so far, therefore, as it was not registered, it follows, whether by virtue of the provisions of this enactment or of the present Registration Act (Act XVI of 1908), that the instrument could not be received in evidence for the purpose of proving the terms or incidents of the lease. Sec. 13 of the earlier Act was in fact in wider terms than the present sec. 49: it laid down that no instrument of the kind specified (and the lease in question would admittedly fall within such description) shall be received in evidence in any civil proceeding in any Court, or shall be acted on by any public officer, unless the instrument was registered, whereas sec. 49 now enacts that no document which is required to be registered, but is not registered shall affect any immovable property comprised therein or be received in evidence of any transaction affecting such property. From this point of view, the learned Munsif, I think, was quite right in refusing to admit this document to prove the alleged permanency of the tenancy.

Mr. Imam Hossain Choudhury next contended that this unregistered lease might and ought to have been received in evidence in any case for the purpose of founding a defence under sec. 53A of the Transfer of Property Act. He relied on the terms of this section itself, which was added to the Transfer of Property Act by the amending Act XX of 1929, as also on the proviso introduced by a contemporaneous amendment under Act XXI of 1929 in sec. 49 of the Indian Registration Act, whereby it was enacted among other things that an unregistered document affecting immovable property and required to be registered may be received as evidence of part performance of a contract for the purpose of sec. 53A of the Transfer of Property Act.

On behalf of the Respondents, Mr. Das' first answer to this contention was that sec. 53A was not retrospective in operation, and that consequently, the Defendants were not entitled to avail themselves of the benefit of this section, seeing that the transaction in question had taken place as far back as 1865. Now, this is a question by no means free from difficulty, and there has been considerable divergence of judicial opinion over it. It hardly admits of any doubt, and this is in fact a point on which there is general unanimity in the reported decisions, that sec. 53A does not merely lay down a rule of procedure, but affects substantive rights, and primâ facie, therefore, it should be held to apply so as not to interfere with vested rights. That is a well-known rule of construction, and it is not necessary to cite any authority in support of it. In the present case, as already stated, the transaction took place after the Registration Act of 1864 had come into force, and under the provisions of that Act, the lease being unregistered, it could not be received in evidence in any Civil Court, which meant that for all practical purposes the lease could not affect the property at all. Suppose the lessor sued to eject the lessee, the lessee could not set up the lease as a bar, because the document would not be admitted for want of registration. The effect of non-registration would thus be to deprive the lessee of certain rights which he might otherwise claim under the lease, and at the same time, to create certain corresponding rights in favour of the lessor which he would not likewise have been entitled to. In other words, the operation of the Registration Act would be on the one; hand to create, and on the other, to put an end to, substantive rights, and it would not be right, therefore, to let subsequent legislation affect such rights, unless the intention was made unequivocally clear by the statute itself. So far there is no difficulty. The controversy arises as to whether the statute gives any such clear indication, with reference to sec. 53A, that it is meant to be retrospective in operation. That it has not been made retrospective by express words is practically conceded on all hands: the question is, if it is so by necessary intendment, and this is the point with reference to which the cleavage of opinion has manifested itself.

Sitting as a single Judge, I consider myself bound by the decision of a Division Bench of this Court in Mohammad Hossain v. Jamini Nath Bhattacharjya(1), where my learned brothers Nasim Ali and Mukherjea, JJ., in separate but concurrent judgments held that sec. 53A would apply retrospectively to transactions completed before the 1st April, 1930, being the date of commencement of the amending Act of 1929 which introduced the section, except that they pointed out that the section would not apply to such transactions which were the subject-matter of pending actions on that date [on which last point, reference may also be made to Nasim Ali J.'s decision in Durgapada Karmakar v. Nrishinghachandra Nandi Chaudhuri(2)]. Mr. Justice Nasim Ali rested his conclusion mainly on the terms of sec. 63 of Act XX of 1929, which specifically provides that certain amendments of the Transfer of Property Act made by that enactment would not have retrospective effect, this being held to give rise to the necessary inference that the other amendments which included sec. 53A would have such effect. Mr. Justice Mukherjea not only relied on the provisions of sec. 63 of the amending Act, but took note also of the state of the law at the time when this legislation was enacted, and sought to construe sec. 53A with reference to the object which the legislature may be supposed to have had in view in introducing this amendment. He held that sec. 53A was not intended to provide a totally new remedy, but was only a statutory recognition of the pre-existing law as expressed in judicial decisions based on the equitable doctrine of part performance, such recognition being however, made subject to two important limitations, in respect of which it was said the legislature did have an intention to override the decisions. It was conceded that if the object of sec. 53A was to create a new remedy where there was none under the old law, the section could not but be prospective: in other words, the learned Judge agreed that if sec. 53A was held to import for the first time into Indian law the doctrine of part performance, no doubt with certain restrictions, and if but for this statutory enactment, there could be, or could have been, no room for the application of that doctrine in this country, the section could not possibly apply to previous transactions.

I shall not presume to say if the reasons advanced by my learned brothers are really of a decisive character, but I may perhaps, without disrespect, refer to a case of the Patna High Court, Jagadamba Prasad Lalla v. Anadi Nath Roy(3), in which this decision has been considered and dissented from on grounds which lack neither clarity nor cogency. So far as I am concerned, however, the authority of our Court is binding on me, and I cannot, therefore, but overrule Mr. Das' objection on the ground that sec. 53A is not retrospective.

In this view of the matter, it is not necessary to consider the argument which the learned Advocate for the Appellants raised that apart from sec. 53A, he was entitled to rely on the lease as a bar to the claim for ejectment on the equitable principle of part performance as recognised and applied by the Privy Council in the case of Mahomed Musa v. Aghore Kumar Ganguli(4). This would raise the question whether such an equitable doctrine could be said to exist in India apart from statutory enactment, so as to override the express provisions of statute law, such as the Transfer of Property Act and the Registration Act,—a question which was discussed by the Judicial Committee in two later decisions in which this very case was considered by their Lordships: Ariff v. Jadu Nath Majumdar(5) and Pir Bakhsh v. Mahomed Tahar(6).

“The English doctrine of part performance, as Lord Russel of Killowen explained in Ariff's case, is not available in India by way of defence to an action of ejectment (apart from the subsequent statutory alteration of the law mentioned hereafter).”

So said Lord Macmillan in Pir Bakhsh's case, meaning by the statutory alteration that effected by the enactment of sec. 53A, and be it noted, he spoke of this section as “altering” the law in India by way of a “partial importation into India of the English equitable doctrine of part performance.” It seems to be doubtful, therefore, how far, after these later pronouncements of the Judicial Committee, the observations in Musa's case may be still supposed to hold the field: Probably their operation should be confined only to transactions which were completed before either the Transfer of Property Act or the Registration Act came into force. The lease here was no doubt before the Transfer of Property Act, but it was after the Registration Act of 1864 had become law. As I have said, however, it is hardly necessary to pursue the question further, as for reasons already given, I must hold that sec. 53A will apply.

If Mr. Das fails on his first contention as to the applicability of sec. 53A, his second answer is more effective, and it is that no case under or on the lines of this section was made by the Defendants, and that there could not, therefore, be any question of admitting the lease to prove such a case under the proviso to sec. 49 of the Registration Act. A defence under sec. 53A of the Transfer of Property Act ought certainly to be raised in specific terms, as it involves questions of fact, but it does not appear that any foundation was laid by the Defendants for such a plea either in the pleadings or in the evidence. It was not alleged, for instance, that the original lessee under the unregistered lease had been put into possession or continued in possession of the property in part performance of the contract, or that the lessee had performed or was willing to perform his part of the contract. It was not, again, shown that the terms under which the Defendants now claimed to hold the disputed lands were the same as those mentioned in the lease. Mr. Das pointed out, on the other hand, an undeniable variation at least in respect of the amount of rent. The present rent as recorded in the settlement khatian was Rs. 1, whereas the rent stated in the lease was 12 annas. It may be that this variation could be explained away as due to variation in the area or to other circumstances which would not affect the identity of the holding, but the point worth noting is that a defence which involves such questions of fact cannot be allowed to be raised for the first time in second appeal. On this ground, I hold that the case which Mr. Imam Hossain Choudhury sought to raise under sec. 53A must fail.

The next point the learned Advocate urged was that apart from the lease he could show other facts and circumstances, such as the course of dealings with the property and the conduct of the parties, from which the permanency of the tenancy could be inferred. It does not appear, however, that his clients tried to make out a case on this basis: they seem to have relied more on documents, all going back ultimately to the unregistered lease which the learned Munsif refused to admit, with the result that though they had the opportunity to adduce other evidence from which an inference of permanency could be drawn, they did not in fact place sufficient materials in that respect on the record. This contention must accordingly also fail.

Mr. Imam Hossain Choudhury finally contended that the Courts below failed to appreciate an alternative case which his clients had made in their written statement setting up a title to a permanent tenancy by adverse possession, but which was misunderstood as being an assertion of a hostile claim as landlords in denial of the title of the Plaintiffs and their predecessors as such. In point of fact, it was said, there had been no such denial, and all that the Defendants pleaded was that they had all along claimed to hold is permanent tenants under the Plaintiffs and their predecessors and had done so to their knowledge. The contention was that whatever might have been the character of the tenancy at its inception, this long and uniform assertion of a permanent tenancy had the effect of creating a right to such tenancy by prescription against the landlords.

There can be no doubt that neither of the Courts understood the case in this sense, and the learned Advocate is right in saying that they took the view that his clients were asserting title by adverse possession in denial of the title of the landlords. It is not surprising that in the view they thus took of the pleadings, the Courts naturally found an obvious inconsistency in the defence.

I have anxiously considered whether in these circumstances I should not direct a remand for a consideration of the real case which the Defendants had made of adverse possession, viz., this case of a limited right to a permanent tenancy by prescription. The learned Advocate for the Respondents suggested that the Court below had actually dealt with the case on this basis, and referred to certain passages in the judgment of the lower Appellate Court for this purpose. I do not think he is right, because as I have said, this aspect of the matter had not at all been appreciated, and it had not been raised in the issues in distinct terms.

The question which arises, however, is how far such a line of defence is sustainable in law; in other words, whether a tenant can in law prescribe against his landlord to such a limited extent, when there is no suggestion that he held under a void lease or a lease which had become ineffectual. Where possession of the tenant originates in lawful title, I am not at all sure that it is open to him to claim a higher status for himself as a tenant than he originally had by the mere assertion of such status to the knowledge of his landlord. A landlord who allows a tenant to assert the validity of an invalid lease for the statutory period may be debarred from subsequently questioning the right of the tenant to hold under the lease. The principle is that in such a case, the person coming into possession under a lease which is invalid or void as against the person seeking to eject him becomes a trespasser, and as such, after the expiry of the statutory period, he acquires by prescription the limited right under the lease, whether it be a lease for a term or a lease in perpetuity. But where there is no question of the Defendant holding under an invalid or void lease, it seems to be doubtful whether he could set up a claim to a higher status as tenant by right of adverse possession. Thus, it has been held that where it is admitted or found that the Defendant is entitled under a valid lease to hold a tenure for his life (or for a fixed term), a mere notice to his landlord that he claims to hold on a perpetual hereditary tenure does not make his possession adverse within the meaning of the Limitation Act, so as to bar a suit for possession on the expiration of the life tenancy (or of the fixed term, as the case may be) [Maharani Beni Pershad Koeri v. Dudh Nath Roy(7)]. One who sets up a permanent tenancy does not by so doing repudiate any title or interest which would have been in his landlord, had the tenancy not been permanent: by setting up such a title, the tenant does not incur any forfeiture of his actually existing rights.

There are some decisions which no doubt lend some support to the view that even where a tenant is in possession of land under the terms of a valid tenancy, he can, during the continuance of his term, set up higher rights than he has, and claim an acquisition of such higher rights by adverse possession for the statutory period. See for instance, the case of Thakore Fatesinghji v. Bamanji A. Dalal(8). But on the other hand, there are pronouncements of the Judicial Committee definitely laying down a contrary proposition. Thus, in Nainapillai Marakayar v. Ramanathan Chettiar(9), their Lordships say:

“No tenant of lands in India can obtain any right to a permanent tenancy by prescription in them against his landlord from whom he holds the lands.”

and reference is made to an earlier decision of the Privy Council, Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande(10). On the authority of these cases it was held by Mitter, J., in Bepin Chandra v. Taraprasanna Chakravarty(11), that a tenant having a lower status cannot by asserting to his landlord's knowledge for more than 12 years that he has a higher status, acquire the higher status.

In this state of the authorities, I have come to the conclusion that I must repel the prayer for a remand of the case to the trial Court or to the Court of Appeal below.

The result is that the appeal fails on all points, and must be dismissed with costs.

At one stage, I was inclined to grant a remand, and also grant leave to appeal, but on further consideration I think I must refuse both.

C.C