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Case Number

Appeal from Appellate Decree No. 107 of 1937, preferred on the 30th November, 1936, against the decree of the District Judge of Zillah Burdwan (M.H.B Lethbridge Esq.), dated the 18th August, 1936, reversing the decree of the Munsif, Katwa (Manmatha Kumar Roy Esq.), dated the 5th February, 1936

Advocates

Gopendra Nath Das and Sambhu Nath Banerji for the Appellants.
Hemendra Chandra Sen and Khitish Chandra Ghatak for the Respondents.

Judges

Mukherjea, J.

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Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

This appeal is brought by the Plaintiffs arising from a suit to recover khas possession of 5 bighas 3 cottas of land and to establish their title as tenants under Defendants Nos. 1 to 3. The lands admittedly belonged to Defendants Nos. 1 to 3 in their putni and darputni tenures and were originally held as khas. In April 1925 Defendant No. 6 received a mokarari (permanent) lease of 6 bighas 3 cottas (including the lands in dispute) from Defendants Nos. 1 to 3, reserving an annual rental of Rs. 13-7-0.

Defendant No. 6 sold one bigha to Rustum and by three separate kobalas (1925–1929) sold the remaining 5 bighas 3 cottas to the Plaintiffs. The Plaintiffs paid the landlord's fees at purchase and were recorded in cadastral survey records as tenants under Defendants Nos. 1–3. Defendants Nos. 1–3, however, sued Defendant No. 6 for rent, obtained a decree, caused execution sale and purchased the land themselves in December 1932. They took symbolic possession in 1934 and removed certain paddy crops grown by the Plaintiffs.

The Plaintiffs first commenced a suit for injunction against Defendants Nos. 1–3, which was dismissed on the ground that the Plaintiffs were already dispossessed and thus an injunction suit would not lie. Thereafter, the Plaintiffs instituted the present suit in June 1935 claiming khas possession, mesne profits and damages.

At trial the Court found that the potta (lease) granted to Defendant No. 6 created a permanent and transferable interest; the Plaintiffs, having purchased by registered kobala and paid landlord's fees, became tenants from the date of purchase; consequently the earlier rent decree against Defendant No. 6 did not bind the Plaintiffs. The trial Court therefore decreed the Plaintiffs' suit.

Defendant No. 3 alone appealed to the lower Appellate Court. Although a minority/infancy contention had been raised below, it was not pursued on appeal. The District Judge allowed the appeal on two grounds: (1) an express covenant in the potta meant the original lessee remained liable for rent until the landlord recognised the transferee as tenant; therefore the rent decree and execution sale bound the Plaintiffs; and (2) the Plaintiffs' earlier suit for injunction barred the present suit under Order 2, Rule 2 of the Code of Civil Procedure. The Plaintiffs have challenged both grounds in this appeal.

Legal Issues Presented

Whether the covenant in the potta (lease) that the transferor remains liable for rent "so long as the relationship of landlord and tenant is not established between the lessor and the transferee" prevents the transferee (the Plaintiffs) from becoming tenants and renders the rent decree against the original lessee (Defendant No. 6) and the execution sale binding on the Plaintiffs.
Whether the Plaintiffs' present suit for possession is barred by Order 2, Rule 2 of the Code of Civil Procedure in view of their earlier suit for injunction which was dismissed.

Arguments of the Parties

Plaintiffs (as reflected in the record and trial Court findings)

The Plaintiffs relied on their registered kobalas, payment of landlord's fees and their entry in cadastral survey records to assert that they had become tenants from the date of purchase.
The Plaintiffs challenged the binding effect of the rent decree and execution sale procured against Defendant No. 6 on the basis that they were recognised tenants and that Defendant No. 6's liability did not continue to bind them.
The Plaintiffs contested the application of Order 2, Rule 2 (i.e., they did not accept that the earlier injunction suit barred the present suit for possession).

Defendants (as reflected in pleadings and lower Appellate Court reasoning)

The principal defence asserted that Defendant No. 6 was an ordinary ticca tenant and did not acquire mokarari or occupancy right; the Plaintiffs were unrecognised transferees and therefore bound by the rent decree obtained against Defendant No. 6.
Defendant No. 3 additionally asserted he was not a party to the potta granted to Defendant No. 6, and thus Defendant No. 6 and the Plaintiffs were not tenants under him (this was a plea raised in trial court but not pursued on appeal).
The lower Appellate Court accepted two grounds: (a) the potta covenant meant the transferor remained liable for rent until the landlord recognised the transferee as tenant; hence the decree against Defendant No. 6 bound the Plaintiffs; and (b) the earlier injunction suit barred the present suit under Order 2, Rule 2 CPC.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nabjan Sardar…Defendant v. Neburali Molla…Plaintiff	Illustrates that a permanent lease may include stipulations/conditions making transfers subject to additional requirements (e.g., security or mutation fee) so that transferor may remain liable until those conditions are fulfilled.	The Court cited this authority to acknowledge the general possibility of inserting such stipulations into a permanent lease, but then analysed the specific clause in the present potta and concluded that the clause in question did not impose additional conditions on the transferee beyond what the law requires for recognition as tenant.

Court's Reasoning and Analysis

The Court's analysis proceeded in two parts, addressing each of the principal grounds on which the lower Appellate Court had allowed the appeal.

1. Interpretation of the potta clause (transfer and landlord recognition)

- The Court accepted at the outset that it is possible generally for a permanent lease to contain stipulations that make a transfer subject to additional conditions (citing the precedent noted above). However, the Court examined the exact wording of the potta clause at issue:

“You will be entitled to possess and enjoy lands with great felicity down to your sons, grand-sons and heirs and successors with rights of transfer of all sorts; in case of transfer so long as the transferee does not establish the relationship of landlord and tenant with us till then you with your heirs and successors would remain liable for rent.”

- The Court reasoned that the clause does not require the transferee to perform any specific act (such as furnishing security or paying a mutation fee) before the transfer can be recognised. Instead, the wording indicates that the transferor remains liable only so long as the relationship of landlord and tenant is not established between the lessor and the transferee.

- The Court held that, for a permanent lease, the relationship of landlord and tenant between the lessor and the transferee is established as soon as the document is executed and registered and the landlord's fees are paid. In the present case, those formalities were complied with by the Plaintiffs; therefore the transfer was operative and binding on the landlord.

- The Court rejected the lower Appellate Court's construction as unreasonable: accepting that construction would permit the lessor to withhold recognition indefinitely and impose arbitrary conditions, undermining the character of a permanent transferable lease.

- The Court added a further, independent point: even if the lower Appellate Court's construction were accepted, it would not assist Defendants Nos. 1–3 because a partial transfer (one bigha to Rustum) had already been recognised by the landlords (separate rent demanded from Rustum). That recognition of a part of the tenure meant the landlord could not continue to hold Defendant No. 6 liable for the entire reserved rent and the clause had thereby lost its operative force in respect of the remaining lands sold to the Plaintiffs.

2. Application of Order 2, Rule 2 of the Code of Civil Procedure

- The Court observed that the point that the present suit was barred by Order 2, Rule 2 had been abandoned before the trial Judge, but considered the merits nonetheless because it had been relied upon by the lower Appellate Court.

- The Court analysed the cause of action in the earlier injunction suit: in that suit Plaintiffs had prayed for an injunction on the footing that they were in possession and that auction-purchaser landlords threatened eviction. The earlier suit failed because the Plaintiffs were already dispossessed and their remedy was for possession.

- The Court concluded that Order 2, Rule 2 could not bar the present suit because the present relief (a suit for possession and title) could not have been obtained on the earlier cause of action (which was an injunction claim premised on possession). The present relief was not a claim that could properly have been advanced in the earlier proceeding, and there was no suggestion that any question of title had been decided against the Plaintiffs in that earlier suit, nor that res judicata in any form applied.

Holding and Implications

Core Ruling: The Court allowed the Plaintiffs' appeal, set aside the judgment and decree of the lower Appellate Court, and restored the decree of the trial Court in favour of the Plaintiffs.

Consequences and costs awarded:

The Plaintiffs succeed on both points contested on appeal (interpretation of the potta clause and the applicability of Order 2, Rule 2 CPC).
Costs: The Plaintiffs will recover costs against the heirs of Defendant No. 3 in this Court and in the lower Appellate Court; the cost in the lower Appellate Court is ordered to come out of the estate left by Defendant No. 3. The Plaintiffs will get costs against all Defendants in the trial Court.

No new broader legal principle or precedent was announced beyond the Court's interpretation and application of the specific potta clause and procedural bar in this case; the opinion confines itself to deciding the rights and liabilities of the parties on the facts and law as applied above.

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Abdul Rashid Sheikh v. Chaur Kumar Raj

The Judgment of the Court was as follows:—

This appeal is on behalf of the Plaintiffs and it arises out of a suit commenced by them to recover khas, possession of the lands in suit on establishment of their title to the same as tenants under Defendants Nos. 1 to 3. The facts lie within a small compass. The disputed lands which measure 5 bighas 3 cottas admittedly belongs to Defendants Nos. 1 to 3 as being within their putni and darputni tenures and they were originally held by them in khas. In April, 1925, they granted a mokarari lease of 6 bighas and 3 cottas of land including the lands in suit to the Defendant No. 6, reserving an yearly rental of Rs. 13-7-0. The Defendant No. 6 sold one bigha out of these lands to one Rustum and by three separate kobalas executed between 1925 to 1929, sold the balance of 5 bighas 3 cottas which is the subject-matter of the present dispute to the Plaintiffs. Rustum had a separate jama created in respect of his one bigha plot in the sherista of the landlord for which an annual rent of Rs. 2 annas odd was paid by him separately. The Plaintiff did pay the landlord's fees at the time of their purchase and their names were recorded in the Cadastral Survey records as tenants under Defendants Nos. 1-3 in respect of the lands in suit. The Defendants Nos. 1-3 however, ignoring the rights of the Plaintiffs brought a suit for rent against Defendant No. 6 claiming rent for the suit lands and having obtained a decree in that suit put up the land to sale and purchased that themselves in December, 1932. They took symbolical possession in 1934 and took away certain paddy crops grown by the Plaintiffs. The Plaintiffs thereupon instituted a suit for an injunction, restraining these Defendants from taking possession of the properties and in that suit the Defendants gave out that they were possessing the lands through their bargadars, the Defendants Nos. 4 and 5. That suit was dismissed on the ground that as the Plaintiffs were already dispossessed no suit for injunction would lie. Thereupon the present suit was instituted in June, 1935 and the Plaintiffs claim khas possession of the lands in suit as well as mesne profits and damages.

The material defence was that the Defendant No. 6 was an ordinary ticca tenant and did not acquire either mokarari or even occupancy right in the lands in suit under Defendants Nos. 1 to 3 and that the Plaintiffs were in the position of unrecognised transferees and were hence bound by the decree which Defendants Nos. 1 to 3 obtained against Defendant No. 6. The Defendant No. 3 put forward an additional plea that he not being a party to the potta granted to Defendant No. 6, Defendant No. 6 or the present Plaintiffs were not tenants under him.

The trial Court held on evidence that all the Defendants including the Defendant No. 3 were bound by the terms of the potta granted to Defendant No. 6 which created a permanent and transferable interest in favour of the latter and as the Plaintiffs purchased the suit lands by a registered kobala and duly paid the landlords' fees they became tenants since the date of their purchase and no question of recognition did arise. The decree which the Defendants Nos. 1 to 3 obtained against Defendant No. 6 was therefore not binding on the Plaintiffs and they were not in any way affected by the execution sale. On these findings, the trial Court decreed the Plaintiffs' suit.

The Defendant No. 3 alone took an appeal to the lower Appellate Court against this decision. Although the main point taken on behalf of the Defendant No. 3 in the trial Court was that as he was a minor at the time when the potta was executed he was not in any way bound by the same, yet this contention was not raised on his behalf in the appeal preferred by him. There were two other points raised before the lower Appellate Court on his behalf, both of which found favour With the learned District Judge who allowed the appeal and dismissed the Plaintiffs' suit. The first ground upon which the District Judge allowed the appeal was, that there was an express covenant contained in the potta granted to Defendant No. 6, which created the lease to the effect that though the lessee would be at liberty to transfer his interest yet he would remain liable for rent so long as the relationship of landlord and tenant was not established between the landlord and the transferee. It was held that under this covenant, which was valid and enforcible, Defendant No. 6 remained liable for rent as the Plaintiffs were not recognised as tenants by Defendants Nos. 1 to 3 and consequently the rent decree against Defendant No. 6 and the sale in execution thereof were binding on the Plaintiffs. The second ground accepted by the District Judge was that the previous suit for injunction commenced by the Plaintiffs against Defendants Nos. 1 to 3 having been dismissed, the present suit was barred under Or. 2, r. 2 of the Code of Civil Procedure. The propriety of both these grounds have been challenged before me by the learned Advocate who appears for the Plaintiffs Appellants.

As regards the first point, I have no doubt in my mind that it is quite possible to insert a stipulation in a permanent lease providing for the fulfilment of certain conditions, without which a transfer by the lessee would not be binding on the landlord. Thus there may be a covenant that the transferee should furnish security or that he should pay a mutation fee and unless these are done, the transferor would not be absolved from his liability to pay; rent and the landlord shall not recognise the transferee. Nabjan Sardar…Defendant v. Neburali Molla…Plaintiff . . In the present case the clause of the potta Ext. (II) which is material for our present purpose and upon which reliance has been placed by the District Judge runs as follows:—

“Yon will be entitled to possess and enjoy lands with great felicity down to your sons, grand-sons and heirs and successors with rights of transfer of all sorts; in case of transfer so long as the transferee does not establish the relationship of landlord and tenant with us till then yon with your heirs and successors would remain liable for rent.”

This clause does not provide for anything being done by the transferee, e.g by way of furnishing security or paying any mutation fee before the transfer can be recognised by the landlord. It simply says that so long as the relationship of landlord and tenant is not established between the lessor and the transferee the transferor would not be exempted from his liability to pay rent. In my opinion, the landlord wants to make it sure that the transferee has become in law liable to pay rent before he loses his hold on the old tenant and absolves him from his obligation to pay rent. In the present case as the lease is admitted to be a permanent one, the relation of landlord and tenant as between the lessor and the transferee is established as soon as the document is executed and registered and the landlords' fees are paid and in my opinion the conditions in the lease have been complied with and the transfer must be regarded as operative and binding on the landlord. The interpretation put upon the clause by the lower Appellate Court does not seem to me to be at all reasonable. If that construction is accepted the lessor will not only be able to dictate any terms which he chooses to the transferee before he accepts him as his tenant, but he will even be competent to refuse to grant him recognition without assigning any reason whatsoever and this would clearly nullify the character of the lease as a permanent and transferable one and go against the whole tenor of the document. It is difficult to say why this clause was at all introduced, if the intention of the parties was to create a permanent lease. It may be that the parties had no clear idea as regards the position of the transferee under the law but I am definitely of opinion that this clause did not lay down any further condition to be complied with by the transferee, than what is necessary in law to make him a tenant of the lessor.

But even if the construction that is put upon the clause by the lower Appellate Court is accepted I do not think it would help the Defendants Nos. 1-3 in the present case.

There has admittedly been a transfer of a portion of the tenure to Rustum and this transfer has been recognised by the landlords who are realising separate rents from Rustum in respect of the lands purchased by him. After this the landlord cannot certainly hold the Defendant No. 6 liable for the whole rent reserved by the potta. I think the transfer which is contemplated by the potta is a transfer of the entire tenancy and that as there has been a transfer of a part of the lands already and the transferee has been recognised as a tenant, the clause has lost its force altogether and cannot be invoked when the rest of the tenure is sold.

I hold therefore that on the first point the view taken by the lower Appellate Court is not right.

I now come to the second point as to whether the Plaintiffs' suit is barred under the provisions of Or. 2, r. 2 of the Civil Procedure Code. Here also I think that the view taken by the District Judge cannot be sustained. This point, it may be stated at the outset, was definitely abandoned before the trial Judge. Be that as it may, the records show that in the previous suit the Plaintiffs prayed for injunction on the footing that they were in possession of the lands in suit and that Defendants Nos. 1 to 3 as auction-purchasers were threatening to evict them. The suit failed on the ground that as the Plaintiffs were already dispossessed, their remedy would be to institute a suit for possession. This suit they have now instituted. I do not think that Or. 2, r. 2 can in any way operate as a bar to the present suit. The cause of action on which the earlier suit was commenced could not certainly enable the Plaintiffs to pray for a wider and larger relief than what they actually claimed in that suit and there is no question here of seeking to recover the balance which they could claim on the earlier cause of action by any separate and independent proceedings. It may be that the cause of action that was put forward in the earlier suit was wrong but the provisions of Or. 2, r. 2 of the Code of Civil Procedure could not be invoked since the relief that is now claimed could not be claimed on the cause of action which was the basis of the earlier suit. It is not contended before me that any question of title was decided against the Plaintiffs in the earlier suit or that the present suit is barred by any rule of res judicata either actual or constructive.

In these circumstances I am of the opinion that the appeal must succeed on both the points. The judgment and the decree of the lower Appellate Court are set aside and those of the trial Court restored.

The Plaintiffs will get their costs against the heirs of Defendant No. 3 in this Court as also in the lower Appellate Court the cost to come out of the estate left by Defendant No. 3.

They will get costs against all the Defendants in the trial Court.

C.C

Abdul Rashid Sheikh v. Chaur Kumar Raj

Structured Summary of the Court's Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiffs (as reflected in the record and trial Court findings)

Defendants (as reflected in pleadings and lower Appellate Court reasoning)

Table of Precedents Cited

Court's Reasoning and Analysis

1. Interpretation of the potta clause (transfer and landlord recognition)

2. Application of Order 2, Rule 2 of the Code of Civil Procedure

Holding and Implications

Abdul Rashid Sheikh v. Chaur Kumar Raj

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