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Case Number

Letters Patent Appeals nos. 88, 89, 90 and 91 of 1928, from a decision of the Hon'ble Mr. Justice Ross, dated the 3rd August, 1928, affirming a decision of Babu Phanindra Lal Sen, Subordinate Judge of Patna, dated the 25th June, 1927, who in turn reversed a decision of Maulavi Abdul Aziz, Munsif, 1st Court of Patna, dated the 26th June, 1926

Advocates

S.K Mitra and S.B Prasad, for the appellant.
K.P Jayaswal and B.C Sinha, for the respondents.

Judges

Terrell, C.J
Macpherson, J.

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Smart Summary

Case summary — Macpherson, J. (Four appeals under the Letters Patent)

Factual and Procedural Background

The appeals arise from four suits brought by the landlords of Alipur Keora for recovery of possession of four holdings. The landlords alleged that, in the absence of any custom permitting transferability of holdings in the village, the appellant (defendant no. 3, Gangat Lal) had purchased the holdings of defendant no. 1 in each case and had obtained delivery of possession on 7 February 1915; from that date the plaintiffs' raiyat defendant no. 1 had allegedly abandoned the holdings and the landlords were entitled to re-enter.

The appellant defended on two grounds: (1) that he had been recognized as raiyat by the previous landlord (a plea of recognition), and (2) that the suits were barred by limitation. The trial Court (the Munsif) rejected the limitation plea but accepted the plea of recognition and dismissed the suits. On first appeal the limitation point was not pressed; the Subordinate Judge found against the plea of recognition and decreed the suits. That decree was affirmed by a Judge of this Court, and the present appeals under the Letters Patent were preferred against that decision.

Material background facts found by the Courts (as stated in the opinion) include: in 1907 the village was conveyed by Rampragash Lal to Sujait Ali; Sujait Ali's interest was sold for revenue arrears on 26 September 1921 and purchased by the plaintiffs' vendor, who then sold to the plaintiffs on 12 May 1922. The village comprised 54 bighas 8 kathas held by six raiyats. A series of disputes followed: Bulaki Lal was dispossessed by a thikadar between 1898–1902, successfully sued for recovery in 1898, and in execution of mesne-profits decree the remaining tenancy land was sold in 1900. The present appellant purchased the holdings in the name of Bulaki Lal and delivery of possession was given in May 1902. Nevertheless, in the record-of-rights published 26 May 1911 the original tenants' names were recorded against their holdings and the rent was entered as bhaoli. In 1913 the defendant no. 3 (in the name of Bulaki Lal's widow) successfully sued for recovery of possession; delivery of possession was then given on 7 February 1915. The appellant had further litigation with another daughter of Bulaki Lal, with a favourable suit in 1918.

Legal Issues Presented

Whether the landlords' suits were barred by limitation—specifically, whether the cause of action accrued in May 1902 (when formal delivery of possession after auction was given) or only when the appellant obtained actual possession (found to be February 1915).
Whether the appellant had been recognized as the raiyat by the previous landlord such that the landlords' suits were barred by that recognition (i.e., whether acts or proceedings of the landlords amounted to recognition of the appellant's tenancy).

Arguments of the Parties

Appellant's Arguments

The appellant pleaded recognition by the previous landlord that he was the raiyat of the holdings.
As to limitation, an argument was advanced (and pressed in this Court) that the critical date for accrual of the landlord's cause of action was May 1902 when delivery of possession to the auction purchaser (in the name of Bulaki Lal) occurred; from that date the landlord's right of suit under the law of limitation had begun to run.
It was argued (by Mr. S. K. Mitra) that the question of limitation in this respect was a pure question of law: when possession was formally delivered to the purchaser, abandonment by the original raiyat should be presumed, giving the landlord a cause of action from that date.

Respondents' (Landlords') Arguments

The landlords alleged there was no custom of transferable holdings in the village and that the appellant had purchased the holding(s) of defendant no. 1 and obtained delivery of possession on 7 February 1915, from which date the original raiyats had abandoned and the landlords were entitled to re-enter.
As to recognition, the landlords relied (in part) on a 1919 incident in which heirs of Sujait Ali (representing a portion of the inheritance) sued the appellant for rent; it was argued that that incident amounted to recognition of the appellant's tenancy (a point the Court considered and rejected).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kali Charan Ghosh v. Arman Bibi	Held that no direct proof of ouster is necessary when the holding has been sold and possession was in fact given to the purchaser; abandonment may be inferred where the original raiyat repudiated his tenancy from the date of private sale.	The Court distinguished that case from the present facts: unlike Kali Charan Ghosh, the original raiyats here did not repudiate tenancy and the appellant failed to show payment of rent to the landlord; thus the doctrine there did not apply to start limitation in 1902.
Prosanna Kumar De v. Ananda Chandra Bhattacharjee	Shows that it is not always necessary to prove as a fact that a holding has been abandoned; abandonment may be inferred where the entire holding was sold and possession given to purchaser (in that case purchaser put in possession by vendor who did not remain in possession or make arrangements to pay rent).	Distinguished on facts: in Prosanna Kumar De the vendor did not remain in possession nor arrange to pay rent; in the present case the original raiyats remained in cultivating possession and were recorded as raiyats, so the inference of abandonment was not warranted.
Monmatha Kumar Ray v. Josada Lal Podder	Expressed the principle that mere transfer of a holding, apart from other circumstances, does not give the landlord a right to re-enter when the tenant-transferor actually remains in occupation.	Quoted to support the view that some affirmative change (abandonment, repudiation, or loss of actual possession by the tenant) is necessary before the landlord acquires a right of re-entry.
Ramesh Chandra Mitra v. Daiba Charan Das	Held that where an occupancy holding was sold in execution and thereafter the raiyat took a sub-lease from the transferee and remained in possession of part of the cultivation and homestead and had not refused to pay rent, the auction-purchaser could not be ejected — there was no abandonment or repudiation.	Applied as supporting authority that actual continued possession and assertion of tenancy by the raiyat prevents the landlord's right of re-entry arising from mere transfer.
Siperunnessa Bibi v. Ramdeb Rai	Held there was no abandonment where the raiyat sold his holding but remained in cultivating possession on the strength of a sub-lease from his vendor.	Referenced as a supporting decision showing that continued cultivation and occupancy by the raiyat prevents inference of abandonment and thus prevents the landlord acquiring present right of possession.
Jogendra Nath Sircar v. Tincowri Bhattacharjya	Held (in an execution-sale context) that as the raiyat continued in possession of part of the holding and paid rent, the landlord was not entitled to eject the purchaser as trespasser since the tenant had not abandoned the holding.	Used to reinforce the point that continued possession and payment of rent negate abandonment despite a transfer or sale.
Atharuddin v. Murari Mohan	Followed Siperunnessa and Monmatha on the principles concerning transfer and continued occupation by original tenant.	Noted as a decision that followed earlier authorities and supports the conclusion that attorning or transfer alone does not necessarily imply repudiation where the tenant remains in occupation.
Dayamayi's case	Expresses the qualification (the word "ordinarily") and emphasizes that the ultimate test of the determination of tenancy is abandonment under section 87, relinquishment, or repudiation.	The opinion refers to Dayamayi's case to stress that the ultimate test is abandonment/repudiation under s.87 and that mere transfer is not decisive if the tenant remains in occupation.

Court's Reasoning and Analysis

The Court analyzed the two principal points (limitation and recognition) by applying factual findings to established legal propositions and precedents.

On limitation:

The Judge of this Court (below) had held the question was one of mixed law and fact — whether abandonment occurred — and found as a fact that the appellant only secured possession in 1915; the present Court accepted that approach.
The Court rejected the appellant's contention that limitation should run from May 1902 merely because formal delivery of possession occurred then after an auction sale. The Court explained that it is not the formal date of delivery of possession that is decisive where, in reality, the original raiyats continued to occupy and assert their tenancy.
The Court emphasized that in the present cases the evidence (including entries in the record-of-rights published in May 1911) showed the original tenants remained cultivating, asserted their tenancy, and successfully resisted the auction-purchaser's attempts to displace them; therefore there was no abandonment or repudiation prior to 1915.
Constructive repudiation could not be inferred against the landlord when the raiyats remained in actual possession and continued to cultivate and thereby indicated liability and readiness to pay rent; the landlord could not treat those transactions as giving him cause of action until a person could be designated a trespasser — which, on the facts, occurred only when the appellant obtained actual possession in 1915.
The Court distinguished earlier authorities (for example Kali Charan Ghosh and Prosanna Kumar De) where the facts supported inference of repudiation or clear delivery of possession; here, by contrast, the facts showed continuous assertion of tenancy by the raiyats.

On recognition:

The remaining recognition argument focused on an incident in 1919 when heirs of Sujait Ali (representing an 8-anna share) sued the appellant and others for rent. It was contended this amounted to recognition of the appellant's tenancy (or at least recognition by some co-sharers).
The Court observed that the 1919 suit was withdrawn with liberty to file a fresh suit on the ground of formal defects in the plaint, and held that withdrawal prevented treating the plaint as a firm admission binding the landlord. Thus withdrawal did not amount to recognition.
Further, on examination of the plaint translation, the suit had been framed against multiple defendants described as "cultivators" who reaped crops without permission and was explicitly structured to avoid recognizing the appellant as the raiyat. This evidence reinforced the conclusion that the 1919 incident did not constitute recognition of the appellant's tenancy.
Accordingly the plea of recognition failed on the facts as found by the Courts below and affirmed by this Court.

The Court also noted there was an additional plea of the respondents which it found unnecessary to examine in light of the primary reasoning.

Holding and Implications

Final holding: The appeals are dismissed with costs and the decision under appeal is affirmed.

Implications:

Direct effect: The appellant's appeals fail; the decree of the Subordinate Judge (decreeing the landlords' suits) and the affirmation by the Judge of this Court stand. The landlords thereby obtain the relief ordered by the Courts below (consistent with the factual findings that the appellant secured actual possession in February 1915).
Broader legal consequence: The Court applied existing authorities and factual distinctions to reaffirm the principle that mere formal transfer or delivery of possession (especially in execution-sale settings) does not, by itself, create abandonment for limitation or a right of re-entry where the original raiyat remains in cultivating possession and asserts tenancy. The decision rests on the application of established precedent to the facts; the opinion does not purport to announce a novel legal principle beyond the application and distinction of prior authorities.

Disposition: Appeals dismissed. (Courtney Terrell, C.J., concurred.)

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Ganpat Lal v. Wazira Singh

Macpherson, J.:— In these four appeals under the Letters Patent the defendant no. 3 Gangat Lal is the appellant.

The landlords of Alipur Keora brought four suits for the recovery of possession of as many holdings on the ground that in the absence of any custom of transferability of holdings in the village the appellant had purchased the holding of the defendant no. 1 in each case and obtained delivery of possession thereof on the 7th February, 1915, from which date therefore the plaintiffs' raiyat defendant no. 1 had abandoned the holding and plaintiffs were consequently entitled to re-enter.

The defences of the appellant were that he had been recognized as raiyat by the previous landlord and that the suit was barred by limitation.

The first Court negatived the contention as to limitation but sustained the plea of recognition and dismissed the suits.

In appeal the contention as to limitation was not again pressed and the learned Subordinate Judge finding against the plea of recognition decreed the suits.

His decree was affirmed by a learned Judge of this Court, against whose decision these appeals have been preferred.

The material facts are briefly as follows:

In 1907 Rampragash Lal who was the landlord of the village conveyed it to Sujait Ali whose interest was eventually sold for arrears of Government revenue on the 26th September, 1921, and purchased by the plaintiffs' vendor who sold to the plaintiffs on the 12th May, 1922. The village contained 54 bighas 8 kathas of tenancy land which was held by six raiyats. Bulaki Lal who held 20 bighas was dispossessed by a thikadar who held between 1898 and 1902, and the other raiyats. Bulaki Lal successfully sued in 1898 for recovery of possession and in execution of his decree for mesne profits sold up in 1900 the remaining 34 bighas 8 kathas of tenancy land. The present appellant purchased the holdings in the name of Bulaki Lal and delivery of possession was given in May, 1902. But in the record-of-rights finally published on the 26th May, 1911, the names of the original tenants are recorded in respect of their respective holdings, the rent of which is bhaoli. Then the defendant no. 3 instituted in 1913 in the name of the widow of Bulaki Lal a suit for recovery of possession of the land which was successful. Delivery of possession was given on the 7th February, 1915. The appellant had some further disputes with defendant no. 2, a daughter of Bulaki Lal, in which he was successful in a suit in 1918.

The contentions before us are that the decision under appeal is erroneous both on the question of limitation and on the question of recognition.

As to limitation the point made before the Munsif which was that the appellant had been in adverse possession for over twelve years is admittedly untenable and was not repeated in the appellate Court. In this Court the contention is that the real point is that when the plaints were filed in April, 1925, the landlord had lost his right of suit by the lapse of twelve years from May, 1902. The learned Judge of this Court held that the question was not when the defendant's title accrued but when the holdings were abandoned by the original tenants, that it was one of mixed law and fact and that the Courts below having found that it was only in 1915 that the appellant got possession, the real abandonment must be held on the facts to have taken place in 1915 and the suit was not barred.

It is urged by Mr. S.K Mitra that it is a pure question of law and that delivery of possession of the holdings of the raiyats having been given, to appellant in 1902, it must be assumed that actual possession was given to the auction-purchaser resulting in abandonment by the original raiyat which gave the landlord a cause of action on and from that date for recovery of possession of the lands of the holding on the ground of abandonment.

Reliance is placed upon the decision in Kali Charan Ghosh v. Arman Bibi. But though it was there held that no direct proof of ouster was necessary when the holding had been sold and possession was in fact given to the purchaser, there is the important distinction that there the original raiyat definitely repudiated his tenancy from the date of his private sale. In the present instance the appellant entirely failed to show that he had ever paid rent in respect of the holdings to the landlord. On the contrary the evidence, including the entry in the record-of-rights, made it abundantly clear that so far from repudiating tenancy, the raiyats held on tooth and nail, successfully maintained their possession against the auction-purchaser and were recorded as raiyats during the record-of-rights and were in fact dispossessed from the land in February, 1915, that is within twelve years of the institution of the suits. In my judgment it is not the date of formal delivery of possession that is significant in a case like the present. If, in spite of a court sale and delivery of possession, the raiyat actually remains on the land in disregard of the delivery of possession and asserting his tenancy, there is no abandonment by the raiyat and the landlord is not entitled to enter on the land as from the date of formal delivery of possession. The contract between the landlord and his tenant is that the latter shall cultivate the land and pay rent for it. In the present instance the raiyats, so far from ceasing to cultivate or repudiating their relation to the landlord as raiyats, were in cultivating possession of the land in assertion of their tenancy and, if they did not pay rent, implied that they were liable and ready to do so. Constructive repudiation cannot be here inferred so as to affect the landlord, who was entitled to ignore if indeed he knew of those transactions which left his raiyat cultivating the land settled with him as a raiyat and asserting his tenancy, and time could not begin to run against him under the law of limitation until a person whom he could designate a trespasser was actually cultivating the land of the tenancy asserting a right adverse to his tenant, such tenant no longer having any connection with the land. That only occurred in the present cases when the appellant secured for the first time actual possession in 1915 and not till then had the landlord any right to khas possession. As to Dayamayi's case which has been cited the ultimate test of the determination of the tenancy is abandonment under section 87, relinquishment or repudiation, none of which occurred in these cases prior to 1915.

Mr. Mitra has indeed referred to Prosanna Kumar De v. Ananda Chandra Bhattacharjee as showing that it is not necessary to prove as a fact that the holding has been abandoned and that abandonment may be directly inferred from the fact that the entire-holding was sold and possession given to the purchaser. That, however, was a case where the purchaser of the holding at a private sale was put in possession by the vendor, who did not remain in, possession of any portion of the holding nor make any arrangements to pay the rent. As the learned Judges remarked, the second appeal was concluded by the findings of fact.

On the other hand, though the reported decisions do not include any case closely resembling the present in which though the purchaser of a holding at auction sale had received formal delivery of possession, the raiyat remained in actual possession, asserting that he was the raiyat of the landlord, several decisions of the Calcutta High Court go to support the view that something more than mere transfer, at least contra invitum, is necessary to give the landlord right of re-entry, or a cause of action for a claim to possession. As was remarked in Monmatha Kumar Ray v. Josada Lal Podder. “There is a considerable amount of law dealing with the question of the right of the landlord to re-enter the land of a non-transferable occupancy holding after its transfer by the tenant, but in no case has it been held that the mere transfer apart from any other consideration gives the landlord a right to re-enter when the tenant transferor actually remains in occupation of the land.”

Again in Ramesh Chandra Mitra v. Daiba Charan Das it was held in a case where the entire occupancy holding has been sold in execution of a money decree as well as a mortgage decree and thereafter the raiyat took a sub-lease from the transferee and remained in possession of some part of the cultivation and the homestead and had not refused to pay rent, that the auction-purchaser could not be ejected as there was in law no abandonment or repudiation of the tenancy by the tenant and the landlord thus not having a right of present possession could not eject the transferee. It was pointed out by Rankin, J., that the circumstance that the tenant was still on the homestead land and still cultivated a part of the holding is a consideration which takes the case out of the qualification intended by the word “ordinarily” in Dayamayi's case. Reference was there made to. Siperunnessa Bibi v. Ramdeb Rai where it was held that there was no abandonment by the raiyat, and, therefore, no right of re-entry accrued to the landlord where the raiyat sold his holding but remained in cultivating possession on the strength of a sub-lease from his vendor. The decision was similar in Jogendra Nath Sircar v. Tincowri Bhattacharjya where the sale of the holding was in execution of a money decree, and it was held that as the raiyat continued in possession of a portion of the holding and paid the whole rent, the landlord was not entitled to eject the purchaser as a trespasser as the tenant had not abandoned the holding. The decision in Siperunnessa Bibi v. Ramdeb Rai and in Monmatha Kumar Ray v. Josada Lal Podder were followed in Atharuddin v. Murari Mohan. No doubt one of the learned Judges doubted whether the very fact of the tenant transferring the whole of the holding to a stranger and attorning to him was not sufficient, evidence of repudiation of the tenancy under the landlord, but the point obviously does not affect the present case where there was no attorning to a third person but the original raiyats persisted that they and nobody else held the holdings under the landlord and they did not cease to cultivate the holdings.

In my opinion the decision under appeal is correct.

As to the second point it is urged that the facts found amount to recognition. The claim is now restricted to an incident of the year 1919 when heirs of Sujait Ali representing 8-annas of the inheritance sued the appellant for rent. It has been urged before us, first, that this constituted a recognition of the appellant's tenancy in the white holding, because they made the other 8-annas co-sharers parties defendants—a position quite untenable—and in any event that it constituted a recognition by the plaintiff-co-sharers at least. But that is not the whole account of the matter. The suit was eventually withdrawn with liberty to bring a fresh suit, the ground being that

“there were formal defects in the plaint one of them being this that although their collection was joint with that of the pro forma defendants still they had sought for recovery of their share of rental alone in these suits.”

The learned Judge of this Court considered that as the suit was withdrawn, the landlord would not be bound by any statement contained therein as the withdrawal of the suit prevents it from being treated as a firm admission of a tenancy. I am inclined to agree with that view. But there is a further consideration. We have had the plaints translated and it appears that though the appellant and Musammat Raj Kuar also were sued, the first defendant in each case is the original raiyat, and the suit is brought against the defendants, not under the designation of raiyat (manifestly they could not all be the raiyat) but as “cultivators” thereof who reaped and took away the crops of the years in suit without the permission of the plaintiffs. Clearly the suits were deliberately framed to avoid recognition of the appellant as the raiyat of the holdings. This plea accordingly fails.

There is a further plea of the respondent which, however, it is unnecessary to examine.

The appeals are without merit and are dismissed with costs.

Courtney Terrell, C.J:— I agree.

Appeals dismissed.

Ganpat Lal v. Wazira Singh

Case summary — Macpherson, J. (Four appeals under the Letters Patent)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' (Landlords') Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ganpat Lal v. Wazira Singh

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