SAFIUDDIN Vs. LAWRENCE SOMRA KERKETTA

JUDGEMENT

(1.) This appeal arises out of a suit by plaintiff-respondent for a declaration of title and for khas possession. Plaintiff 2 was impleaded in the suit with an alternative prayer that in case of failure of plaintiff 1 to succeed in his title, title of plaintiff 2 might be declared and khas possession might be delivered to plaintiff 2, who, however died during the nendency of the suit. The dispute relates to 12 and odd acres of land which, admittedly, belonged to one Chero. Chero had two sons, Fagua and Nathu. Fagua had two sons, Khedu and Manglu. Manglu left for Bhutan and has not since been heard. Khedu has two sons, Ignace and Champa. Ignace is next friend of plaintiff 1, who is a minor. Nathu had three sons, Tema alias Temba, Harbu and a third son who is dead. Temba was plaintiff 2. Harbu had a son, Thope alias Ramis Nathu Kerketta. Thope's son is Lawrence, a minor, plaintiff 1. The case of the plaintiffs is that the suit land which belonged to Chero fell after his death to the share of Thope and was so entered in the record of rights. Thope went to Bhutan leaving his property in charge of his widowed mother, Damia. Dhamia used to do part-time work in the house of defendant 2 who is the landlord and who used to get the land cultivated on behalf of Dhamia by his own servants and maintain her in turn out of the usufruct of the land. Thope married in Bhutan and plaintiff 1 was born to him in 1936. Thope died in 1938. The plaintiff and his widowed mother returned to their village in January or February, 1942. His widowed mother, however, remarried in 1943 and Lawrence began to live with Ignace, his next friend. The mother of Thope, Dhamia alias Chandli, died sometime after 1943. There was then a dispute under Section 145, Criminal P. C., in which defendant 1 claimed the land on the ground that it was settled with him by the landlord, defendant 2, to whom the land was surrendered by Dhamia, the mother of Thope. The plaintiff, however, claimed that surrender, if any, by Dhamia, was of no avail to the defendants as against the rights claimed by the plaintiffs in the property.

(2.) The defence case, however, was that the plaintiff's father, Thope, left for Bhutan long before the revisional survey. He was not heard of for long and his mother, who was left in charge of the land, was unable to cultivate it properly and to pay the rent. Accordingly, being unable to pay off the arrears of rent, Thope's mother surrendered the land to the landlord, defendant 2 on 15-1-1933 and the landlord came into possession of the land. Accordingly, he cultivated it for two years after which he settled it with defendant 1 who is the appellant in this Court and who claims to have been in continuous possession of the land since the date of settlement paying rent to the landlord in due course. Defendants also pleaded that Lawrence, plaintiff 1, is not the son of Thope as he claims to be. The suit was decreed by the trial court against which an appeal was preferred by the defendants. The lower appellate court remanded the case to the trial court for giving an opportunity to the parties to adduce further evidence as to whether Lawrence was the son of Thope or not. The suit was, however, decreed again by the trial court finding that plaintiff 1 was, in fact, the lawful son of deceased Thope and that the suit was not barred, by limitation. An appeal was again preferred against that decision by the defendant which was dismissed by the lower appellate court against which the present second appeal is directed.

(3.) Mr. Choudhary appearing on behalf of the appellant has raised a number of points which, however, do not require to be dealt with in view of a short point which is raised by him and which is conclusive for the decision of this appeal. It appears that, according to the case of both the parties, Dhamia, the mother of Thope, v/as in possession of the land on behalf of her son up to 15-1-1933, and the landlord came into possession thereafter as Dhamia found herself unable to cultivate the land and to pay up the rent due in respect of the land in her possession. The suit by the plaintiffs was brought on 27-2-1946. It is, thus, clearly beyond twelve years from the date of the commencement of the possession of the landlord, defendant 2, in January, 1933. The point is whether the defendants can successfully resist the plaintiffs' claim for khas possession on this ground. The courts below were right in their view that surrender by Dhamia, mother of Thope, who, at best, was a mere manager or trustee on behalf of Thope, could not be a valid surrender in the eye of law so as to give any right to the land-lord and extinguish the interest of the original raiyat. It appears that the courts below decreed the suit as in their view if the surrender referred to by the landlord could not be valid surrender of the land, the claim of the plaintiff to recover possession could not be denied as the land continued to be the property of Thope and plaintiff 1 was found to be the son of Thope and was, accordingly, entitled to get it back in spite of the so-called sur-render by Dhamia, which was inoperative against the plaintiff's interest. But, it appears that the courts below have lost sight of another aspect of the case which is really relevant for the decision of the controversy between the parties. It is beyond dispute that Thope left the village before 1933, and from 1933 onwards when Dhamia expressed her unwillingness or inability to be responsible for the payment of rent, the position was that the land was left by the raiyat in the village who went to Bhutan without making any arrangement for the payment of rent. From that date onwards, when Dhamia ceased her connection with the land, the land must be deemed to be abandoned in the eye of law so far as the landlord is concerned. I may refer in this connection to an unreported decision of a Division Bench of this Court delivered in 'Second Appeal No. 1382 of 1948 (Pat) (A)', by Barjoo Prosad and Ramaswami, JJ. on 29-2-1952, where an identical question was gone into by their Lordships. That, too, was a Chptanagpur case where the raiyat had left the village and gone to Bhutan, as in the present case, leaving another person in charge of the land for payment of rent. The latter, however, failed to pay the rent and surrendered the land to the landlord, who took possession in accordance with the arrangement. It was contended that the surrender made by a person who was a mere trustee or manager could not be effective against the rightful raiyat and that argument was acceded to by the courts below and also affirmed in appeal by this Court, but, it was held, however, by their Lordships that, in view of the circumstances of the case, defendant could certainly fall back upon the principle of abandonment. It is clear, therefore, that the courts below are wrong in their view in the present case when they hold that although the landlord came into possession of the land, it must be by virtue of a surrender made by a trustee which would amount to surrender only of the trustee's interest and not of the entire interest in the land belonging to the rightful raiyat.