Gopal Chandra Rudra v. Khater Karikar

The Judgment of the Court was as follows:—

Rankin, C.J:— The Plaintiffs' suit is for recovery of possession of certain land. Mr. Justice Mitter, agreeing with the Courts below, has dismissed the suit. On this Letters Patent Appeal, the learned Advocate for the Plaintiffs contends that in view of sec. 85 of the Bengal Tenancy Act, Defendant No. 4, who alone contests the suit and contests it in respect of four plots only out of the suit lands, is a mere trespasser so far as the Plaintiffs are concerned. The Plaintiffs are the landlords and Defendants Nos. 15 to 18 hold the disputed lands as raiyats under the Plaintiffs. The tenant-Defendants defaulted in payment of rent and the Plaintiffs, having obtained a decree against them, purchased the disputed land on the 23rd March 1922. The case for Defendant No. 4 is that he took settlement of the four plots of land of which he is in possession from one Rup Chand, processor-in-inter-est of Defendants Nos. 15 to 18 by means of a registered patta in the year 1310 B.S, i.e, 1903. No notice has been served on him under sec. 167 or sec. 49 of the Bengal Tenancy Act. The patta relied upon by the Defendant was not produced or proved at the trial though it appears to have been present in Court. The record-of-rights, however, describes Defendant No. 4 as a korfa tenant on the basis of a registered patta.

At the hearing of this appeal no one appeared to argue the case for the Defendant. Mr. Sen for the Plaintiffs contends in view of sec. 85 of the Bengal Tenancy Act that if the patta of 1903 was for a longer period than 9 years, it is altogether invalid as against the landlord, and that if it was for a period of nine years or less, then it expired in or before 1912 and cannot the set up against the landlords' purchase of 1922. The learned Judge has held that even if the term of the patta from 1310 has expired, the undertenant must be taken to be holding over and that his interest is an incumbrance which the landlords were bound to annul on notice under sec. 167 before they could recover possession.

It is certainly suspicious that the registered patta was not properly proved or produced but the assumption may be made in favour of its validity that it did not purport to create a term exceeding 9 years. As regards the period from 1912 to 1922, the question is whether the first sub-section of sec. 85 applies to the case— “If the raiyat sub-lets otherwise than by a registered instrument, the sub-lease shall not be valid against his landlord unless made with the landlord's consent.” On the whole, having regard to the language and the policy of sec. 85, I think that it is not open to the tenant to treat himself in 1922 as holding under the registered patta and that the case is within the clause which I have cited. The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind, it being in each case a question of fact what the intention of the parties was. At the common law, if a tenant continues in possession by consent of his landlord he is deemed prima facie a mere tenant at will. When however a tenant pays rent for a period subsequent to the expiry of the original term, the presumption is that he ceases to be a mere tenant at will. In England in the absence of rebutting evidence, the inference arising from payment and acceptance of rent is that the tenancy is a tenancy from year to year, and, prima facie, the renewed tenancy is subject to all the terms of the expired tenancy which can be applied to a tenancy from year to year. These doctrines are not applicable, to their whole extent, to cases under the Bengal Tenancy Act but in my judgment it is clear on principle that Defendant No. 4 in 1922 was holding under a new agreement and was not holding under the registered patta. The lessor's consent was not given by a registered patta but is to be inferred from the circumstances, from the acceptance of rent and from the conduct of the parties. I think, therefore, that there has been, after the expiry of the original term, a new sub-letting otherwise than by a registered instrument. If this be so, the tenancy is not valid against the landlords in the absence of proof of the landlords' consent.

In these circumstances the appeal must in my judgment be allowed, the decrees of the Courts below must be set aside as against Defendant No. 4 and the Plaintiffs must recover in ejectment against him with costs in all the Courts.

C.C Ghose, J.:— I agree.

H.C.S

Appeal allowed with costs.