Citation Codes

Equivalent Citations

citation codes

Case Number

Appeal from Appellate Decree No. 854 of 1900

Judges

Ghose
Harington
Brett, JJ.

Acts

provisions of sec. 27 of the old Rent Act (VIII B.C of 1869)
provisions of secs. 44 to 46 of the Bengal Tenancy Act.
Art. 3 of the 2nd Schedule to the Limitation Act.
provisions of sec. 9 of the Specific Relief Act,
ejected.Sec. 44 of the Bengal Tenancy Act
sec. 9 of the Specific Relief Act.
Bengal Tenancy Act, Sch. III(3).
sec. 9, Specific Relief Act,
INDIAN LIMITATION ACT

See more information ...

Smart Summary

Judgment Summary — Non-Occupancy Raiyat; Limitation (Full Bench)

Factual and Procedural Background

The reference before the Full Bench arose from a suit by non-occupancy raiyats seeking recovery of possession of land of which they alleged they had been illegally dispossessed. The referring Judges disagreed on whether such a suit is governed by Section 9 of the Specific Relief Act (a possessory remedy with a six months limitation) as held in the earlier case Bhagabati Charan Roy v. Luton Mondul, or whether the suit involves a question of title and so is governed by the ordinary provisions of the Indian Limitation Act. The Full Bench was asked to resolve the limitation period applicable and related questions about the nature of the non-occupancy raiyat's right. The Court ultimately answered the first referred question in the negative and allowed the appeal, remitting the matter to the Subordinate Judge for trial on the merits; the appellant was awarded costs of this Court including the costs of the reference.

Legal Issues Presented

Whether a suit by a non-occupancy raiyat to recover possession after alleged illegal dispossession is a possessory suit under Section 9 of the Specific Relief Act (and thus governed by the six months limitation) or is a suit founded on title and therefore governed by the ordinary law of limitation (Indian Limitation Act).
Whether a non-occupancy raiyat possesses a title to the land (as distinct from merely a right to be maintained in possession until ejected in due course of law under the Bengal Tenancy Act), such that a suit by him to recover possession should be treated as an action on title rather than a simple possessory action.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bhagabati Charan Roy v. Luton Mondul	Held that suits by non-occupancy raiyats for recovery of possession are under Section 9 of the Specific Relief Act and must be brought within six months from illegal dispossession.	Cited as the earlier, conflicting authority. Chief Justice Maclean expressed inability to follow that ruling in the particular view he took; Justice Prinsep referred to his participation in that decision and supported the view that the suit is under Section 9; Justice Ghose discussed and contrasted that decision in his analysis and answered the first question in the negative. The case served as the focal precedent that the Bench had to accept, distinguish or disapprove.
Joyunti Dasi v. Mahomed Ally Khan	Interpreted the old Rent Act provision to mean that when title is set up the limitation is governed by the Indian Limitation Act rather than the summary possessory remedy.	Referred to by Justice Ghose by analogy to show that where title is pleaded the limitation under the Limitation Act applies; used to support the view that a tenant's suit founded on title falls outside the summary possessory limitation.
Basarutali v. Altaf Hissein	Similar line of authority under the old Rent Act holding that actions founded on title are governed by the Indian Limitation Act rather than the shorter possessory period.	Referred to by Justice Ghose as further authority for the proposition that a suit where title is set up should be governed by the Limitation Act.
Ramdhone Bhadra v. Rim Kumar De	Considered by the Court in relation to the anomalous effect of differing limitation periods for occupancy and non-occupancy raiyats.	Quoted by Justice Ghose to note the perceived anomaly (that a non-occupancy raiyat might have a longer limitation period than an occupancy raiyat), but he stated that such anomaly cannot govern judicial decision-making where statutory provisions must be administered as they stand.

Court's Reasoning and Analysis

The Full Bench's reasoning is presented through multiple judicial opinions; the following summarizes each judge's principal analytical steps as contained in the opinion.

Chief Justice Maclean

Stated inability to follow Bhagabati Charan Roy v. Luton Mondul on the ground that the present suit is for the establishment of title and recovery of possession, not merely a possessory suit under Section 9 of the Specific Relief Act.
Accepted the referring Judges' conclusion that the plaintiffs, as non-occupancy raiyats who had been allowed to hold over after expiry of the lease, had a "good title" to the land entitling them to recover possession against persons not shown to have a better title; here the defendants were mere trespassers.
Concurred in the reasoning and conclusion of the referring Judges and Mr. Justice Ghose, answered the first referred question in the negative, and observed that the second question was unimportant in the circumstances.

Justice Prinsep

Characterized the suit as one by a non-occupancy raiyat to recover possession after illegal dispossession, and framed the reference as concerning the limitation period applicable.
Analyzed Section 9 of the Specific Relief Act as a possessory remedy where questions of title are excluded and only possession and illegal dispossession within the prescribed period (six months) are relevant.
Interpreted the Bengal Tenancy Act provisions (Secs. 44, 45 and 89) as maintaining a non-occupancy raiyat in possession until ejected in due course of law, and concluded that this is not a title in the land but a right to be maintained in possession; therefore such a suit falls within Section 9 and the six months limitation.
Concluded his view that a non-occupancy raiyat's right is not a title that would bring the suit outside Section 9 of the Specific Relief Act.

Justice Ghose

Posed the central question as whether Section 9 of the Specific Relief Act provides the only remedy for a non-occupancy raiyat dispossessed otherwise than in due course of law; if not, the six months limitation would not necessarily apply.
Examined Chapter VI of the Bengal Tenancy Act and identified a range of statutory protections and incidents (restrictions on rent enhancement, grounds for ejectment, requirement of notice to quit on expiry of term, right to determined rent and a five-year protection where rent is fixed) that, in his view, give a non-occupancy raiyat more than a bare right to be maintained in possession.
Distinguished a simple possessory action under Section 9 from an action founded on title; held that if the tenancy is not lawfully put an end to the raiyat remains a tenant and thus can sue on that tenancy-title, which is different from the position of a mere trespasser.
Recalled prior jurisprudence under the old Rent Act (Section 27 of Act VIII B.C. of 1869) and associated decisions (e.g., Joyunti Dasi and Basarutali) that treated actions on title as governed by the Limitation Act rather than the summary possessory limitation, using this as an instructive analogue.
Considered the particular situation of eviction by a trespasser (not the landlord) and reasoned that it would be anomalous to deny a tenant remedy merely because the eviction was by one lacking title; thus the limitation applicable could be under the Limitation Act (either six or twelve years as applicable), and in any event the present suit fell within the applicable period.
Concluded that the remedy under Section 9 is not necessarily the only remedy for a dispossessed non-occupancy raiyat and that the suit before the Court was within time under the Limitation Act; he agreed that the first question should be answered in the negative.

Concurring Remarks

Justices Harington and Brett expressly agreed with Justice Ghose's reasoning and conclusions.
Chief Justice Maclean recorded concurrence with the referring Judges' conclusion that the plaintiffs had title and concurred with Justice Ghose's judgment as well.

Holding and Implications

Core Ruling: The Full Bench answered the first referred question in the negative and allowed the appeal. The matter was remitted to the Subordinate Judge to be tried on the merits. The appellant was awarded his costs in this Court, including the costs of the reference.

Direct consequences for the parties:

The appeal succeeds and the case is sent back for trial on the merits before the Subordinate Judge.
The appellant is entitled to costs of this Court and of the reference.
The Court's conclusions mean that, on the facts of this case, the suit was treated as within time (under the Limitation Act as analyzed by the majority), and that the question whether a non-occupancy raiyat's suit is to be treated as a possessory action under Section 9 or as an action founded on title depends on the character of the right asserted and the circumstances (including whether title is in issue and whether the dispossessor is a trespasser).

Broader precedent: The Full Bench engaged with and distinguished prior authority (Bhagabati Charan Roy v. Luton Mondul) and applied statutory analysis of the Bengal Tenancy Act and the Limitation Act. The opinion does not purport to announce an entirely novel statutory principle beyond its determination of the referred questions and the disposition of this appeal; the direct effect is the remittal for trial and the award of costs.

Show full summary ...

Tomizuddin And Others v. Ashrub Ali And Others

Maclean, C.J:— I regret that in this case I am unable to follow the ruling in Bhagabati Charan Roy v. Luton Mondul. I do not think the case is governed by Art. 3 of the 2nd Schedule to the Limitation Act. The suit is one for the establishment of title and recovery of possession, it cannot be regarded as merely a suit for possession under sec. 9 of the Specific Relief Act. I agree with the referring Judges that the Plaintiffs being non-occupancy raiyats who have apparently been allowed by their landlords to hold over after the expiry of the term for which the land was leased to them, have a good title to the land, entitling them to recover possession of it against any one who is not shown to have a better title than themselves. Here the Defendants are mere trespassers. As I concur in the reasoning and conclusion of the referring Judges, I do not think it necessary to say more. I may also say I have read Mr. Justice Ghose's judgment, in which I also concur. I answer the first question in the negative. The second question in the circumstances of the case becomes unimportant and does not practically arise.

Prinsep, J.:— This is a suit brought by a non-occupancy raiyat for possession of land of which he has been illegally dispossessed by the Defendant who is found to be a trespasser.

The point referred to this Full Bench is what is the limitation for such a suit and the reference has been made because the referring Judges do not agree with Bhagabati Charan Boy v. Luton Mondul in which it was held that such a suit is under sec. 9 of the Specific Relief Act and must be brought within six months from the alleged illegal dispossession.

A suit under sec. 9 of the Specific Relief Act is a possessory suit in which no question of title is involved. Possession within the prescribed period and dispossession without the consent of the Plaintiff and otherwise than in due course of law are the only issues for determination, and it has consequently been held that where a person seeks to recover possession of property of which he has been illegally dispossessed on proof of his title to the property the suit is governed by the ordinary law of limitation.

The question before us is whether the present suit is one of that description. The suit is brought by a non-occupancy raiyat to recover possession of land by establishment of title and the issue before us is whether the Plaintiff, a non-occupancy raiyat has any title to the land beyond his right, to be placed in possession on the ground that he has been illegally ejected.

Sec. 44 of the Bengal Tenancy Act declares that a non-occupancy raiyat shall be liable to ejectment only on certain stated grounds and under sec. 45 the landlord can sue to eject him on expiration of his lease only after notice duly served. Sec. 89 declares that no tenant shall be ejected from his tenure or holding except in execution of a decree. The law thus declares the right of an occupancy raiyat to be maintained in possession. Does this constitute a title in the land? Or is it not rather-a right which maintained him in possession until ejected in due course of law as therein described 1 Is not a suit to recover possession of land of which a non-occupancy raiyat has been illegally ejected founded simply on his right to be maintained in possession rather than on any title with him in the land. The right to hold possession as against an illegal dispossession is one which in a possessory suit under sec. 9 of the Specific Relief Act is with any person who can prove an illegal dispossession. The law protects him against the illegal dispossession quite independently of any title on which he may claim to hold it. He has a right to remain there as against the dispossession even though such person may have a superior title in a possessory suit under sec. 9 of the Specific Relief Act. The question of title to the land in suit cannot be raised. Such a suit is determined simply on the ground of illegal dispossession within the prescribed period of six mouths. I am therefore of opinion that there is a clear distinction between a suit founded on a right to be restored to possession because that possession has been illegally disturbed and a suit to recover possession illegally disturbed on the ground that there is a title in the Plaintiff in the land irrespective of the right which every one, even one who is a trespasser and without any title, has to be maintained in possession against an illegal dispossession.

In my opinion while a non-occupancy raiyat has a right to be maintained in possession against an illegal dispossession he has no title in the land irrespective of such right and that right is not a title such as would bring his suit outside sec. 9 of the Specific Relief Act.

What is the title of a non-occupancy raiyat in a suit brought against his landlord to recover possession by reason of his illegal dispossession?

He has a right to be restored to possession because the disturbance may be contrary to the terms of secs. 44 and 45 of the Bengal Tenancy Act which contain the law on the subject. In a suit against his landlord the question of illegal ejectment such as could be raised in a suit under sec. 9 of the Specific Relief Act would along be raised. He could not in my opinion bring a suit to recover possession on the strength of his title. He has no title in the land as against his landlord. He has no title to ??? to another in his life-time by his voluntary, act or on his death to his heir. His heir may be entitled to the standing crop raised by the deceased as has been just declared by this Full Bench, but he can not claim possession of the holding. The title to the land on which a suit can he brought to recover possession as against a trespasser is with the landlord. The right to be maintained in possession or to be restored to possession against a trespasser which may be pleaded in a suit brought by a non-occupancy raiyat depends on his right not to be disturbed, not on any title in him independent of that right. The right not to be disturbed in peaceful possession is even with one who is a trespasser. In my opinion a non-occupancy raiyat has no higher right and has no title on which he can bring a suit to recover possession except one based on that right and such a suit can only be one within sec. 9 of the Specific Relief Act. These are the considerations which were present to me as one of the Judges in Bhagabati Charan Roy v. Luton Mondul.

I am confirmed in this opinion by reference to the law of limitation in regard to a suit to recover possession of land brought by an occupancy raiyat such a suit can be brought only within two years from the date of dispossession, Bengal Tenancy Act, Sch. III(3). Still if such a suit on title by a non-occupancy raiyat is outside sec. 9, Specific Relief Act, it be brought within a much longer period under the ordinary law of limitation. It would therefore be that while a suit can be brought by a raiyat having the statutory right of occupancy only within two years, a much longer period is allowed for a suit by a non-occupancy raiyat of an inferior class. It has been suggested that this is due to an oversight on the part of the Legislature and that in specially providing for the case of an occupancy raiyat the Legislature has neglected to deal with a suit by a raiyat of an inferior class and has thus allowed him the benefit of a longer time under the ordinary law of limitation within which he can bring his suit. I cannot accept this view when in my opinion a different and reasonable explanation is forthcoming. It seems to me rather that the Legislature proceeded on the ground stated by me.

In my opinion the case of Bhagabati Charan Roy v. Luton Mondul was rightly decided and the term of limitation applicable to the present suit is six months, the suit being one under sec. 9 of the Specific Relief Act.

Ghose, J.:— The true question involved in this reference is whether the remedy indicated in sec. 9 of the Specific Relief Act is the only remedy which the Legislature has provided for a non-occupancy raiyat, who has been dispossessed otherwise than in due course of law, for, if not, it is obvious that the limitation of six months provided by that section does not apply, and that the suit is governed by sonic one or other, of the articles in the Indian Limitation Act. The chief argument in support of the proposition that the only remedy seems to be that a non-occupancy raiyat has no right to the land but has only a right to be maintained in possession until he is ejected in accordance with the provisions of secs. 44 to 46 of the Bengal Tenancy Act. I regret I am unable to accept this proposition as correct.

Chap. VI of the Bengal Tenancy Act gives to a non-occupancy raiyat certain rights. After such a raiyat has been admitted to the occupation of the land, his rent can not be enhanced except by a registered agreement, or an agreement under sec. 46. He can not be ejected unless it be on one or other of the grounds mentioned in sec. 44, and, when the ejectment is sought on the ground of expiry of the term of the lease, a notice to quit must be served on him, at least six months before the expiration of the term. The rent of a non-occupancy raiyat can not arbitrarily be enhanced, and, when he refuses to execute an agreement to pay enhanced rent, the Court is bound to determine what may be the fair and equitable rent. And, when the Court determines such rent, and the raiyat agrees to pay it, he is entitled to remain on the land for a term of five years. These provisions indicate that a non-occupancy raiyat has something more than a bare right to be maintained in possession of the land until he is ejected in due course of law. He is, I think, entitled to the land as a tenant, until he forfeits his rights as such, and is ejected in accordance with the provisions of secs. 44 to 46. Take the case of a non-occupancy raiyat whose rent has been determined under sec. 46. He is entitled, upon the rent being so determined, to remain om the land for a term of five years a tenant at the lent? determined. This is certainly some thing more than a bare right to be maintained in possession. He is entitled to the land as a tenant for five years, and if, on the expiry of the term, he is allowed by the landlord to hold over, he continues to hold as a tenant until he is ejected by the landlord in accordance with the provisions of the Act.

There is a clear distinction between a possessory action such as sec. 9 of the Specific Relief Act contemplates, and an action upon title and when the tenancy of a non-occupancy raiyat is not put an end to, as the law requires, lie remains upon the land as a tenant, and necessarily, if he is illegally ejected, he is entitled to claim possession as a tenant, his title being that of a tenant of the land. His position is very different from that of a person who enters into a land as a trespasser, but who, if evicted illegally, is entitled to be put back in possession according to the provisions of sec. 9 of the Specific Relief Act, though he has no title to the land.

That section lays down only a summary remedy applicable alike to a person, whether he be a trespasser, a tenant, or an owner of the land, when be is ejected without due course of law. But is this the only remedy which the Legislature has provided for a person who claims to be a tenant of the land, and who, on proof of a subsisting tenancy, is entitled to recover possession of the lands? I think not.

I may here refer to the provisions of sec. 27 of the old Rent Act (VIII B.C of 1869) where the limitation of one year was provided for an action by a tenant when illegally ejected, and it was held in a series of cases that section referred to a possessory action against the landlord, and not to a suit where title is set up and possession is asked for in pursuance thereof, and that, in such a suit the period of limitation was that provided in the Indian Limitation Act [see Joyunti Dasi v. Mahomed Ally Khan(2), Basarutali v. Altaf ff issein(3)].

The summary remedy that was provided for a tenant in sec. 27 of Act VIII (B.C) of 1869 is what is to be found in sec. 9 of the Specific Relief Act for all classes of persons. In the present case the Plaintiff sought to recover on the strength of his title as non-occupancy raiyat, and an issue was raised as to that title. The title, however, has been found, on investigation, to be that of a non-occupancy raiyat only. But the result of the trial as to the exact character of his right hardly affects the question of limitation.

I have hitherto addressed myself to the question as if the person who evicted the Plaintiff is the landlord but here the eviction was by a person who had no title to the laud, a trespasser, as he has been found to be. Conceding that as between a non-occupancy raiyat and the landlord, the former has only a bare possessory right, if illegally ejected, can the same argument apply if the eviction is caused by a trespasser—the right as between the Plaintiff and the trespasser being clearly in the former?

Take the case of a non-occupancy raiyat from year to year. Let us assume that, in the month Jaista when he is holding as a tenant, he is evicted by a trespasser, and he does not bring his suit for recovery of possession until after six months, but before the expiry of the year. Take again the case of a tenant who under a lease is entitled to hold the land for five years and the tenant being dispossessed in the middle of the first year by a trespasser does not bring his suit until after six months. According to the arguments of the other side, he cannot recover, though there is shall a subsisting tenancy right in him. Would the dismissal of his suit exonerate him from the ??? to pay rent to his landlord? I doubt whether he would be so exonerated.

No doubt, the fact that the Legislature has not provided in the Bengal Tenancy Act any period of limitation for the case of a non-occupancy raiyat is rather remarkable; and it is anomalous as pointed out by me in Ramdhone Bhadra v. Rim Kumar De that a larger period of limitation should be applicable to such a case than in the case of an occupancy raiyat. But we cannot guide ourselves by such considerations. We have to administer the law as it is.

For these reasons I agree with my Lord in holding that the first question should be answered in the negative; and, so far as the second question is concerned, the limitation, I should say, is either 6 or 12 years, as provided in the Indian Limitation Act. In either view this suit is within time.

Harington, J.:— I have read the judgment which has been delivered by Mr. Justice Ghose and I agree in that judgment.

Brett, J.:— I also, agree in the judgment of Mr. Justice Ghose and agree that the questions referred should be answered in the manner stated by the learned Chief Justice.

Maclean, C.J:— The result is that the appeal must be allowed and the case must go back to the Subordinate Judge to be tried on the merits.

The Appellant is entitled to his costs in this Court including the costs of this reference.

S.C.S

Appeal allowed.

Tomizuddin And Others v. Ashrub Ali And Others

Judgment Summary — Non-Occupancy Raiyat; Limitation (Full Bench)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Chief Justice Maclean

Justice Prinsep

Justice Ghose

Concurring Remarks

Holding and Implications

Tomizuddin And Others v. Ashrub Ali And Others

Comments