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Naresh Chandra Basu v. Hayder Sheikh Khan And Ors.
Structured Summary of the Opinion
Factual and Procedural Background
This appeal arises from a suit by the plaintiff for a declaration of his tenancy right in a disputed holding and for recovery of possession. The disputed holding, carrying an annual rental of Rs. 10-4-0, was subject to a rent suit (No. 1217 of 1919) instituted by Nityamani Dasya against certain tenants (identified in the plaint as Erfen Bibi, Asirennessa Bibi, Chandjan Bibi). A decree was obtained in that rent suit and executed in Rent Execution Case No. 474 of 1922. The plaintiff purchased the holding in execution of that decree on 12th September 1922.
The defendants remained in occupation by erecting huts, and in Falgun 1329 the plaintiff called upon them to vacate; they refused, prompting the present suit. At trial the Munsiff found that the persons sued in the rent suit did not represent the entire holding as recorded in the landlord's books, and that none of the two defendants then before the court had any subsisting title. The Munsiff decreed the plaintiff's title to a 57/80th undivided share and directed recovery of possession of that undivided share jointly with persons owning the remaining 23/80th.
The plaintiff appealed to the Subordinate Judge (Jessore), who affirmed the Munsiff's decision but modified the decree so that the plaintiff would recover possession of the 57/80th share jointly with the defendants. The Subordinate Judge found the decree in the rent suit was not a rent decree and that the sale was not a rent sale because the parties to the rent suit did not represent the tenancy.
The plaintiff then appealed to this Court on three specified grounds (set out below).
Legal Issues Presented
- Whether the persons who were parties to the rent suit (No. 1217 of 1919) adequately represented the tenancy such that the decree and sale operated as a rent decree/sale transferring the whole tenancy.
- Whether the plaintiff's symbolical possession obtained through the Court on 3rd February 1923 is equivalent to actual possession as against the defendants so as to permit eviction of the defendants who do not claim a right after the sale.
- Whether the Subordinate Judge erred in modifying the Munsiff's decree to direct joint possession of the plaintiff with the defendants to the extent of the plaintiff's 57/80th share when there was no appeal by the defendants to the lower appellate Court.
Arguments of the Parties
Appellant's Arguments (Plaintiff)
- The question of whether the persons sued in the rent suit represented the tenancy is in part a question of fact, but legal considerations run through that enquiry; therefore the appellate findings on representation should be scrutinized (relying on Hyder Khan v. Secry of State [1909] 36 Cal. 1).
- Five specific points said to have been overlooked or insufficiently weighed by the lower appellate Court: (i) settlement proceedings under Chapter 10, Bengal Tenancy Act, showed the persons sued were recorded tenants in the finally published Record-of-Rights; (ii) heirs of Bazari Sheikh who were not parties to the rent suit had taken no steps to set aside the sale decree; (iii) Erphan Bibi and other sisters of the defendants were not in possession at the time of the rent sale; (iv) an endorsement on the back of the writ of delivery of possession showed symbolical possession was delivered to the plaintiff, and the appellate Court erred in finding symbolical possession was not delivered; (v) it was never suggested in the litigation that the arrears claimed in the rent suit were not actually due or that the decree was erroneous or unjust.
- Reliance placed on Ganpat v. Bindubashini (A.I.R. 1920 P.C. 1) and Sarat Chandra v. Bhibabati (A.I.R. 1921 Cal. 584) to support the contention that the tenancy was adequately represented in similar circumstances.
- With respect to possession, reliance was placed on Sundar v. Parbati [1890] 12 All. 51 to contend that a cosharer (here the plaintiff holding 57/80th) can evict others as against whom he is co-sharer where they are mere trespassers.
- The absence of an appeal by the defendants should preclude modification of the Munsiff's decree by the lower appellate Court.
Respondent's Arguments (Defendants / Respondent)
- Documentary exhibits (Exs. 3 and 3-A) show that the recorded tenants were the persons against whom the decree was obtained; Ex. B shows that the defendants Julmat and Erfan were tenants — indicating the landlord (Nityamani) knew of tenants other than those sued.
- The Record-of-Rights was not filed in the case, undermining the appellant's reliance on it.
- The name of the original tenant Bazari Sheikh appeared in the sherista of Nityamani, so it could not be said the suit was brought against the recorded tenants alone.
- Whether the tenancy was adequately represented in the rent suit is essentially a question of fact, and it is not open to the Court in a second appeal to disturb concurrent findings of fact by the two lower courts.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hyder Khan v. Secry of State [1909] 36 Cal. 1 | Cited by appellant to show that questions of representation, though factual, involve legal considerations and may be open to review. | The Court noted the appellant relied on this authority but held that both lower courts had concurrently found lack of adequate representation on evidence, and the Court was bound by that concurrent finding in second appeal. |
| Ganpat v. Bindubashini A.I.R. 1920 P.C. 1 | Cited by appellant in support of the contention that a sale in a rent suit can operate as transferring tenancy when representation is adequate. | The Court acknowledged reliance on this Privy Council decision but concluded the facts of the present case did not establish adequate representation as found by the two lower courts; the authority did not persuade the Court to reverse the factual findings. |
| Sarat Chandra v. Bhibabati A.I.R. 1921 Cal. 584 | Cited by appellant as an instance where the sale was held effective because the defendants knew of the suit and execution and did not seek to reopen proceedings for many years. | The Court considered this decision but distinguished it on facts: in Sarat Chandra the defendants were aware and long acquiesced; here the family structure and the absence of impleaded persons differed, so the Court found the earlier case not analogous and declined to apply it to overturn concurrent findings. |
| Sundar v. Parbati [1890] 12 All. 51 | Relied upon by appellant to argue a cosharer may recover possession of the whole of joint property against trespassers. | The Court examined the authority and held it did not support the appellant's broader proposition: Sundar v. Parbati concerned widows in lawful possession and did not authorize a cosharer to obtain possession of the whole property where his substantive share was less; the Court rejected using it to justify whole-possession recovery here. |
| Doe Hellyer v. King [1851] 6 Ex. 791 | Established the rule (Baron Parke's majority view) that a tenant-in-common may recover possession against a trespasser only to the extent of his share. | The Court adopted this majority rule as the correct principle and applied it to hold that a cosharer (the plaintiff) could not recover possession of the whole premises but only to the extent of his 57/80th share; this supported affirming the appellate Court's decree for joint possession to that extent. |
Court's Reasoning and Analysis
The Court analyzed each ground of appeal in turn and confined itself to the evidence and findings recorded by the two lower courts.
- On the first ground (adequacy of representation in the rent suit), the Court observed that both the Munsiff and the Subordinate Judge had concurrently found on the evidence that the parties to the rent suit did not adequately represent the tenancy. The Court regarded itself as bound in a second appeal by such concurrent findings of fact and found no reason to disturb them. The Court further noted that it was not alleged there was no proper evidence before the appellate Court to support that finding. The Court also distinguished the Sarat Chandra decision relied upon by the appellant on its facts (in that case there was awareness and long delay to reopen proceedings), whereas in the present case the family composition (a Mahomedan family where brothers and sisters could not be treated as a single family unit) and the absence of impleaded persons made the circumstances materially different.
- On the second ground (effect of symbolical possession and entitlement to recover whole possession as a cosharer), the Court examined the authorities cited. It held that Sundar v. Parbati did not support the appellant's broader proposition because that case turned on lawful possession by widows and did not stand for the proposition that a plaintiff in ejectment may obtain possession of the whole lands when entitled only to a lesser share. The Court considered contrary authorities, including Freeman on co-tenancy and the English case Doe Hellyer v. King, and accepted the majority rule in Doe Hellyer that a tenant-in-common is entitled to recover possession against a trespasser only to the extent of his share. Applying that rule, the Court concluded the plaintiff could not recover possession of the whole holding but only joint possession to the extent of his 57/80th share; accordingly, the lower appellate Court's grant of joint possession to that extent was correct.
- On the third ground (whether the appellate Court could modify the decree in the absence of a defendant's appeal), the Court held that the Subordinate Judge was empowered to make a decree proper in the circumstances under Order 41, Rule 33, Civil P.C. The Munsiff's form of decree (directing the plaintiff to have joint possession with other cosharers who were not parties) did not accord with law, and the appellate Court correctly put the decree into the appropriate form by directing joint possession to the extent of the plaintiff's 57/80th share.
On the whole, having considered the evidence and authorities, the Court found no merit in any of the three grounds of appeal.
Holding and Implications
Holding: APPEAL DISMISSED WITH COSTS.
Implications:
- The concurrent factual findings of the Munsiff and the Subordinate Judge that the parties to Rent Suit No. 1217 of 1919 did not adequately represent the tenancy stand and are not disturbed.
- The plaintiff is not entitled to recover possession of the whole disputed holding; he is entitled to declaration of title and to recover joint possession only to the extent of his 57/80th undivided share, as directed by the lower appellate Court.
- The Subordinate Judge's modification of the Munsiff's decree (putting it in the form directing joint possession to the extent of the plaintiff's share) is upheld; the appellate Court was empowered to make a proper decree under Order 41, Rule 33, Civil P.C.
- No broader or novel precedent was announced by this opinion; the Court applied existing authorities and affirmed the lower courts' factual findings and the form of the decree.
This summary is strictly confined to and derived from the content of the provided opinion. No information has been invented or inferred beyond the text supplied.
1. This is an appeal by the plaintiff and arises out of a suit for a declaration of his tenancy right in the disputed land and for recovery of possession of the same.
2. The facts of the case lie within a short compass. The defendants who are two in number and their cosharers had an occupancy holding which carried an annual rental of Rs. 10-4-0 under Nityamani Dasya who sued the defendants Erfen Bibi, Asirennessa Bibi, Chandjan Bibi who are her tenants and whose names are alleged to be recorded in the sherista of Nityamani for arrears of rent in respect of the said holding, obtained a decree in that rent suit (No. 1217 of 1919) and executed the same in Rent Execution Case No. 474 of 1922; the plaintiff purchased the holding in execution of the said decree on 12th September 1922; the defendants were living on the disputed land by the erection of huts and in Falgun 1329 the plaintiff called on them to give up possession of the land by removing the huts therefrom but the defendants refused to vacate. Hence this suit.
3.The defence of defendant 1 substantially is that the decree and the sale referred to in the plaint, are not rent decree and rent sale as all the persons having an interest in the said holding were not parties in the rent suit brought by Nityamani and that consequently only the right, title and interest of those persons, who are parties to the rent suit, passed by the sale.
4. It is common ground that the disputed holding belonged originally to one Bazari Sheikh, father of the defendants who died leaving behind him the defendants Tomez and Adam and Kadam and Gopal Sheikh, his four sons, and two daughters named Arfemassa and Masirunnessa Bibi as his heirs. It has been found that Garaz Bibi, the widow of Gopal, and the sisters of the present defendants were not impleaded in the Rent Suit No. 1217 of 1919. The Munsiff found, that the persons who were defendants in the Rent Suit No. 1217 of 1919 did not represent the entire holding of Rs. 10-4-0 in the books of Nityamani Dasya. The Munsiff found further that none of the two defendants has got any subsisting title to the disputed land. He accordingly decreed the plaintiff's suit declaring his title to 57/80th share in the disputed land and he directed that plaintiff do recover possession of the said undivided share with persons owning the remaining 23/80th share in that land.
5. An appeal was taken by the plaintiff to the Court of the Subordinate Judge of Jessore against the decision of the Munsiff and the learned Subordinate Judge affirmed the decision of the Munsiff subject to this modification that plaintiff will recover possession of 57/80th share in the land in suit jointly with the defendants. The lower appellate Court found that the decree in the rent suit was not a rent decree, that not only the persons mentioned by the Munsiff were not included in the rent suit but also Junmat, the son of Gopal, was not impleaded in that case. The appellate Court found that persons who were parties to the rent suit did not represent the tenancy and the sale was not a rent sale.
6. The plaintiff has appealed against the decision of the Subordinate Judge to this Court and three grounds have been taken in support of this appeal : (i) that there has not been a proper determination of the question of representation of the tenancy in the rent suit by the persons who were parties to the same; (ii) that as the plaintiff obtained symbolical possession through Court on 3rd February 1923, against the defendant that possession is equivalent to actual possession as against them and the defendants who do not pretend that they have any manner of right to the disputed property after the sale cannot resist eviction; (iii) that as there was no appeal by the defendants to the lower appellate Court, the Subordinate Judge was in error in modifing the decree of the Munsiff by directing joint possession of the plaintiff with the defendants to the extent of their 57/80th share.
7. With regard to the first ground taken, the argument of the appellant is put in this way. It is true that the question as to whether the persons who are parties to the rent suit of 1919 represented the tenancy or not is in one sense a question of fact, but at every point in the process of reasoning considerations of law have to be regarded, and consequently the finding that there was not a proper representation of the tenancy could not be accepted as final: see Hyder Khan v. Secry of State [1909] 36 Cal. 1. The following elements which were necessary to be considered in determining the question of representation were not taken into account by the lower appellate Court, (i) the settlement proceeding under Chap. 10, Bengal Tenancy Act, shows that persons against whom the rent suit was instituted were the persons who are recorded as tenants of the holding in the finally published Record-of-Rights; (ii) no step had been taken by the heirs of Bazari Sheikh who were not made parties to the rent suit to set aside the decree of sale; (iii) that no proper weight has been attached to the circumstance that Erphan Bibi and the other sisters of the defendants were not in possession of the disputed holding at the time of the rent sale: (iv) the endorsement on the back of the writ of delivery of possession shows that symbolical possession was delivered to the plaintiff as against the : defendants and the Court of appeal below is in error in finding notwithstanding this endorsement that symbolical possession was not delivered; (v) it has not been hinted in the present litigation that the arrears claimed in the rent suit were not due in fact or that the decree was erroneous or otherwise unjust in any particular. It is further said that the question as to whether the tenancy was not adequately represented in the rent suit and that the decree made therein did not operate as a rent decree has not been tested with reference to the considerations of the five matters just referred to. In support of this contention reliance has been placed on the decision of the Judicial Committee of the Privy Council in the case of Ganpat v. Bindubashini A.I.R. 1920 P.C. 1, and on the decision in the case of Sarat Chandra v. Bhibabati A.I.R. 1921 Cal. 584.
8. On the other hand it is argued for the respondent that as Exs. 3 and 3-A show that the recorded tenants are the persons against whom the decree was obtained and Ex- B shows that the defendants Julmat and Erfan are the tenants, the landlord knew at some point of time that Julmat, son of Gopal, was interested in the tenancy and that Nityamani knew that there were tenants other than those against whom the rent decree was obtained. It is pointed out that the Record-of-Rights have not been filed in the ease. It is also urged that the name of the original tenant Bazari Sheikh appeared in the sherista of Nityamani so that it is not a case where the names of the persons who were parties to the rent suit were recorded as tenants in the sherista of Nityamani so that it could not be said that the suit was brought against the recorded tenants. It is strenuously urged that the questions as to whether the tenancy was adequately represented or not is a question of fact and it is not permissible to me sitting in second appeal to interfere with the said finding.
9. After giving my most anxious consideration to the case I think the contention of the respondent must prevail. Both the Courts below have concurrently found on evidence before them that the parties to the rent suit did not adequately represent the tenancy and by this finding of fact I am bound in second appeal. It is not said that there was no proper evidence before the lower appellate Court to sustain the finding on this part of the case. I am unable to see how the defendants can be estopped from contending that the decree was not a rent decree or that the sale was not a rent sale. In the case in Sarat Chandra v. Bibhabati A.I.R. 1921 Cal. 584., the sale was not set aside for a number of years. Ram Narayan and Lakshmi Narayan the two brothers of Tara Prosad were joined as defendants. The interest of Ram Narayan as a cosharer of the tenancy was identical with that of his nephews. The evidence showed that the defendants were aware of the suit, the decree and the execution proceedings. Although many years elapsed since the decree was made and the sale was held, no endeavour had been made to reopen the proceedings. In those circumstances the Court held that there was an adequate representation of the tenancy in the rent suit. The facts of this case are not similar to those of the present. Here the family is a Mahomedan family and it could not be said that the brothers and sisters were members of the same family. The first ground, therefore, taken by the appellant, fails.
10. In support of the second ground reliance has been placed on the decision of the Judicial Committee of the Privy Council in the case of Sundar v. Parbati [1890] 12 All. 51, and it is argued on the authority of that decision that the plaintiff being a cosharer to the extent of 57/80th share are entitled to evict the defendants who are mere trespassers. An examination of the case before the Judicial Committee will, however, show that in that case the widows were in lawful possession of the property of their deceased husband and it was held that they have an estate or interest therein in respect of their possession notwithstanding that under an adoption or a will by the deceased husband a preferable title thereto might exist. It was said by their Lordships that they (the widows) were entitled to maintain their possession against all new-comers except the only person who can plead a preferable title but as the possible claimants were not in the field each of the widows could divide the joint estate between them. This case is no authority for the, proposition that whore a plaintiff brings a suit in ejectment he can get a decree for possession of the whole of the lands from which he seeks ejectment although he may be entitled to a lessar share in the said lands. All that the case decides is that a cosharer of joint property can maintain possession of the whole of the joint property as against a trespasser. Reference has also been made to Article 343 of Freeman on Co-tenancy and partition in which the author states that a cosharer of joint property can recover possession of the whole of the joint property from a trespasser and not merely to the extent of his share therein. But the same learned author points out that there is a respectable body of authority even in America, the opposite way and it is held in some of the States that a cosharer can only recover joint possession even as against the trespasser to the extent of his share in the joint property. The true rule is laid down in the decision in the case of Doe Hellyer v. King [1851] 6 Ex. 791, where Baron Parke said that a tenant-in-common is entitled to recover possession as against a trespasser only to the extent of his share. This was the view which was adopted by the majority of the Court. Baron Parke said:
I' am, therefore, of opinion, that the lessors of the plaintiff being tenants-in-common with other persons are not entitled to a verdict for the whole of the premises though they might recover less.
11. Baron Parke and Baron Alderson took a view different from Baron Platt who said:
Now a tenant-in-common is the owner of the whole estate in common with his co-tenants; therefore as soon as he has proved his right to the possession in common with others and that the defendant having no such right is a wrong-doer as against him, he is, in my opinion, entitled to a general verdict for the purpose of recovering possession of the whole.
12.The view of Baron Platt is the view contended for by the appellant but as Baran Platt was in the minority the appellant cannot rely on his view as his opinion did not prevail.
13. In this view I think the second ground taken fails and the lower appellate Court was right in granting a decree to the plaintiffs for joint possession with the defendants to the extent of the plaintiffs' 57/80th share.
14. I now proceed to deal with the third ground. Although there was no appeal by the defendants it was open to the lower appellate Court to make a decree which would be proper in the circumstances of the case under Order 41, Rule 33, Civil P.C. The decree of the Munsif directing that plaintiff should have joint possession with the other cosharers who were not parties to the suit does not seem to be in accordance with law. The lower appellate Court has put the decree in the right form. There is no substance in this ground also.
15. All the grounds fail and the appeal will be dismissed with costs.
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