CHITPORE GOLABARI CO LTD Vs. HARI MOHAN GHOSE

JUDGEMENT

(1.) These appeals (Nos. 1946 to 1949 of 1927) are from a decision of the District Judge of 24 Parganas confirming a decision of the Subordinate Judge, 2nd Court, Alipur. They arise out of one judgment. The plaintiffs in the suits out of which these appeals arise were suing for ejectment of the defendants from four holdings. The plaintiffs case was that the lands with which the suits are concerned appertained to a putni in Touzi No. 343 of the 24 Parganas Collectorate belonging to Hari Mohan Ghose plaintiff 1 and his brother Harihar Ghose in equal shares. Harihar Ghose executed a trust deed appointing the other plaintiffs as trustees and they were in possession of the half-share which belonged to him. The plaintiffs averred that the lands in question were situated within Mouza Pujali within the plaintiffs mahal and were held under them as appertaining to tenancies which are ticcagar kayemi and non-transferable, and rents were paid to the plaintiffs by the occupiers of the lands in the names of the recorded tenants. The plaintiffs further stated that the tenancies had been sold without the plaintiffs knowledge and non-sent to the present defendants by the occupiers who abandoned the tenancies without making any arrangement for payment of rent and that accordingly the defendants were in possession of the land as trespassers. They therefore claimed the ejectment of the defendants from the land and the right to hold the taluk in khas possession. The real defence set up by the defendants was that the disputed tenancies were heritable and transferable and that they had been held at a uniform rate of rent from time immemorial and that the plaintiffs were estopped from denying that position by their acts and conduct and accordingly they were not entitled to recover possession. It appears that the holdings had been leased out to certain recorded tenants. After a time these recorded tenants had ceased to pay rents and the plaintiffs had continued to receive rents in their names from other persons as sarbarakars. In the case of four of these tenancies the sarbarakars sold their rights to the defendants in 1919, and in the fifth case they sold the rights to defendants in 1921. It was contended on behalf of the plaintiffs that the sales by the sarbarakars being transfers of entire non-transferable occupancy holdings had in fact constituted abandonment and on this ground they claimed possession. The case for the defence on the other hand was that whether they were tenants or not the sarbarakars had acquired a transferable right in the land. With the exception of the lands with which Suit No. 135 was concerned it is not disputed that the holdings were in fact agricultural tenancies. The learned District Judge came to the conclusion that in the circumstances of these cases the sarbarakars that is to say the vendors to the defendants were in fact the tenants of the plaintiffs. And he further came to the conclusion that the onus was on the tenants to show that the occupancy holdings were transferable. The main contention put forward on behalf of the defendants in the lower appellate Court was that the presumption arising under the provision of Section 50, Ben. Ten. Act, ought to have been applied to the consideration of these cases, and that contention was the one mainly relied upon in the argument put forward before us in the course of these appeals. In order to arrive at a right determination in the matter it is necessary to consider the precise nature of the suits with which we are concerned and to observe the way in which the plaintiffs claim was in fact framed. The language of Section 50 is perfectly plain in that it lays down that the presumption therein mentioned shall only arise if: it is proved in any suit or other proceeding under the Act (Bengal Tenancy Act) that either a tenure-holder or raiyat and his predecessors in interest have held at a rent or rate of rant which has not been changed during the 20 years immediately before the institution of the suit or proceeding.

(2.) There is no doubt whatever that the provision was intended to mean and in fact does mean that the presumption shall only arise where the suit is one brought under the provisions of the Bengal Tenancy Act. One would scarcely have thought that it would be necessary for any judicial decisions upon that point in order to put that proposition beyond doubt. But actually there is a long line of cases in which it has been categorically laid down that the object of the legislature in providing for the presumption as to the fixity of rent mentioned in Section 50, Ben. Ten. Act, was to provide in suits or proceedings under the Act, that is, suits between landlord and tenant as such, a speedy determination of the rights of the parties. I only need give the bare references to one or two cases in which that has been decided, namely the cases of Buzlul Karim V/s. Satish Chandra Giri (1911) 10I.C. 325 and Santosh Kumar Roy V/s. Rakhal Chandra Kazra .

(3.) All these cases show that Sub-section 2, Section 50 has no application to suits which are not suits under that Act but are suits under the general law. In the present suits the plaintiffs brought their cases upon the footing that the defendants were trespassers upon the lands in question. The plaintiffs proved to the satisfaction of the Court below that the lands were in fact part of their estate and that therefore prima facie, unless the defendants could show that they were entitled to be upon the land by reason of some right vested in them, the plaintiffs were entitled to recover possession. The defendants apparently succeeded in showing that the rent paid in respect of the lands in question had not been changed for a period of 20 years. Upon that it was contended on their behalf that the presumption under Section 50(2) did arise and that it was incumbent upon the plaintiffs to rebut that presumption. Having regard to the terms of the section itself and the authorities to which I have referred above the proof by the defendants that rent had not been changed for 20 years did not raise a presumption such as was contended. All these authorities and others do however show that the Court may, even in the case of a suit brought under the ordinary law, if it thinks fit, apply the presumption similar to that provided for by the statute. I cannot do better than quote the language which Mookerjee, J., used at p. 784 of 43 C.L.J. with reference to Section 50: It has been repeatedly pointed out that the presumption mentioned in Section 50 applies only to cases arising out of suits or proceedings under the Bengal Tenancy Act.