Prem Sukh Das v. Bhupia

[518] Pearson, J.:— The claim in this suit is based on a keraia-nama, dated 6th July, 1828. In so far as the vacation of the houses in question is claimed in accordance with the condition stated in that document, the suit appears to be one for specific performance of a contract, to which Art. 113, Sch. II, Act XV of 1877, is applicable. Neither of the lower Courts has, however, tried the material issue whether the defendants are bound by the keraia-nama aforesaid. If they are in possession of the houses under the instrument, their possession cannot be held to have been adverse merely because they may not have paid rent within twelve years. The plaintiffs' claim for rent for the years for which it is claimed appears to be within the time allowed by Art. 110, Sch. II of the Limitation Law aforesaid. Whether the claim to enforce the condition relating to the vacation of the houses be within the time allowed under the terms of Art. 113 may be matter for inquiry and determination.

[519] Setting aside the decrees of the lower Courts, I would remand the case for fresh disposal to the Court of first instance, with an instruction that the costs of this appeal shall follow the event and be costs in the cause.

Spankie, J.:— I cannot regard the suit as one for the specific performance of a contract, and if it could be so regarded, it would be barred by lapse of time, for we must accept the finding of the Courts below that no rent has been paid for upwards of twelve years prior to the institution of the claim. Under these circumstances the plaintiff must have had notice that the performance of the contract was refused, and he should have brought his suit within three years from the first default.

But the claim does not profess to be one for specific performance of a contract. It assumes that the conditions of the lease have been fulfilled up to the 6th July, 1875, and asks for the amount due in cash at the rate of two annas for each of the labourers that defendants should have supplied under the terms of the deed of 1828, and also for possession. The defendants totally repudiate the proprietary title of plaintiffs, and deny that any rent was ever paid by themselves or predecessors to plaintiffs, and allege that they have all along held proprietary possession of the house.

We cannot in a second appeal question the finding of fact that the rent has not been paid for upwards of twelve years prior to the institution of the suit. This being so, it appears to me that a claim now to enforce the terms of an instrument written in 1828, which it is shown have not been enforced for upwards of twelve years prior to the institution of the suit, is barred, and should be dismissed. I would dismiss the appeal and affirm the judgment with costs.

The plaintiffs preferred an appeal to the Full Bench, under Cl. 10, Letters Patent, against the judgment of Spankie, J.

JUDGMENTS OF THE FULL BENCH

Oldfield, J. (Stuart, C.J, Pearson, J. and Straight, J., concurring):— This is a suit to recover two years' rent of a certain house from the defendants and to eject them from the premises. [520] The plaintiffs' case is that under a deed of lease, dated 6th July, 1828, their ancestors leased the house to defendants' ancestors on the following terms, that the latter should supply annually eight labourers to the lessor or should pay a sum of two annas in lieu of supplying each labourer, and on failure to comply with the terms should be liable to be evicted from the premises. The answer of the defendants is that the house was built by their ancestors and has always been held by them in proprietary right, and that the deed of 6th July, 1828, on which plaintiffs rely, is a forgery. The Court of first instance, after remarking that no doubt the defendants ancestors were located by those of plaintiffs, finds that there has been no payment of rent within twelve years, and relying on this fact has concluded that their possession has been adverse and has dismissed the claim. The Judge has affirmed the decree: he remarks that “there is evidence to show that the defendant or his predecessors, in times not long ago, acknowledged that he was the plaintiffs' ryot and had been originally located there by the plaintiff's ancestor, Sital, and whatever may be the dependency of a ryot on his lord I think clearly exists between the plaintiff and defendant here: probably the land is still the plaintiffs' and: cannot be diverted to other purposes or sold by the defendant without, the consent of the plaintiff, and there probably the plaintiff's interest and power end, but that plaintiff has a right to eject or take rent is not proved, and the long tenure of defendant without rent is now equiyalent to a good title to hold without payment of rent.”

Neither of these judgments amounts to an adequate finding on the question of tenancy, or disposes of the real question at issue whether or not the defendants' ancestors became tenants of the plaintiffs' ancestors under the deed set up by the plaintiffs, dated 6th July, 1828, and so became liable to the payment of rent and to eviction as averred. This question has not been touched on, nor has the genuineness or otherwise of the deed been even alluded to, and supposing that a tenancy did arise in the manner contended for, the Courts are in error in supposing the mere non-payment of rent for a period of twelve years will suffice to establish that it has been determined, and that defendants have obtained a title by adverse possession, so as to defeat the claim, for once the relation of landlord and tenant has been proved, it is for the latter to establish its cessation by affirmative proof, over and above the [521] mere failure to pay rent. The Courts have in the present suit to decide whether the deed produced by plaintiffs is genuine, and established a tenancy on the part of defendants' ancestors, on the terms alleged, and if so whether defendants have shown that the tenancy has determined, and that they have held for twelve years since its determination. If these questions are decided in plaintiffs' favour they are entitled to succeed. We are of opinion that the appeal must prevail and that a decree should pass in the terms of Mr. Justice Pearson's proposed order.

Spankie, J.:— It will be seen from the pleas in appeal from the Judge's decision to this Court that it is assumed that the relation of landlord and tenant exists under the lease; secondly, that the Judge had not determined whether defendants paid or did not pay rent to plaintiff's, nor had he considered the admission of defendants that they were tenants; thirdly, admitting defendants did not pay rent for some time still the right to receive it cannot be destroyed. In second appeal we had to confine ourselves to these pleas and no others. It is erroneous to assume that the relation of landlord and tenant exists or was admitted as regards the houses. The lease itself refers to thatched and mud-built houses hired to the defendants. But the first Court found that the houses had been constructed entirely by the ancestors of defendants, though these ancestors had been located on the land by the ancestor of plaintiffs. The plaintiffs sued for rent under the lease, averring that it had been paid up to 1875. This the plaintiffs were bound to establish, and it was in issue whether they were entitled to recover possession of the houses in virtue of their proprietary right and the rent claimed by them, or whether, no rent having been paid to them within the twelve years prior to the institution of the suit, they had lost their proprietary right. The first Court found that the plaintiffs had never received the rent within twelve years prior to the institution of the suit: the defendants had repudiated the proprietary title of plaintiffs in the house. The first Court also found that defendants had held adversely to plaintiffs for more than twelve years prior to the institution of the suit. The second Court appeared to me to accept the judgment of the first Court “that defendants had held over twelve years adverse possession and therefore had acquired a title against plaintiffs.”

[522] It seems to me that the rest of the judgment of the lower appellate Court has been misunderstood. The Judge refers to the original location on the land of the persons who constructed the houses which formed the sarai, and in his view, only so far as the land is concerned is there any connection between the plaintiff and defendant as landlord and ryot. “Probably,” observes the Judge, “the land is still the plaintiff's and cannot be diverted to other purposes or sold by the defendant without the consent of the plaintiff, and there probably the plaintiff's interest and power end.” But the Judge holds the right to take rent or eject the defendants not proved, and that defendants have acquired a good title by long tenure to hold without payment of rent.

When then the first plea before us in 2nd appeal referred to the lease of 1828, and the second to the payment of rent and the admission made by defendant that he was a tenant and paid rent, it appeared to me that the Judge had disposed practically of both these pleas in the finding at which he arrived, and that after such a finding no claim brought under the lease could be enforced. The plaintiff's allegation and averment that he had received rent under the lease up to 1875 had broken down, and the lease had never been in operation, certainly for twelve years prior to the institution of the suit. The Judge and Court below him also found that the defendants had acquired a title against plaintiffs by continuous occupation for a very long period without payment of rent, asserting their own proprietary possession as regards the house. Under these circumstances the lease, having never been enforced within twelve years prior to the institution of the suit, could not be enforced now, and I thought that the suit as brought failed and was therefore properly dismissed, and I think so now and would dismiss the appeal.