SUKADEV RAM Vs. KULAMANI SEN

JUDGEMENT

(1.) This is an appeal by the defendants who are aggrieved by the concurrent decisions of the Courts below by which they have decreed the suit instituted by the respondents for ejecting them from two plots in the following circumstances. The plaintiffs case is that they acquired the rights of the previous occupancy tenants in plots Nos. 3152 and 3146, by purchase in the year 1919, at a certificate sale in execution of a decree which was obtained by a landlord. Plot No. 3152 has an area of 414 acres and the other one 3146 has an area of 210 acres. Defendants 3 to 5 were darpattadani or under-tenants of these two plots. In 1917 defendant 2, the appellant before me, purchased plot No. 3146 from the darpattadars and in 1921 defendant 1, also an appellant before me, purchased plot No. 3152 from the darpattadars. According to the plaintiffs the darpattadars have no rights of occupancy in the lands and are mere tenants at will, and, therefore, they have no right whatsoever to make any transfer so that defendants 1 and 2 acquired no rights whatsoever by the sales of 1917 and 1921. Accordingly the plaintiffs have instituted the suit to recover possession of these lands from the defendants on 2nd May 1938. It should be stated here that the purchase of the occupancy rights was by the plaintiffs and defendant 7, but by some amicable arrangement between them the plaintiffs have acquired the whole of the occupancy rights.

(2.) The plea of defendants 1 and 2 was that e the original darpattadars from whom they obtained the transfer were not tenants-at-will but they had a right of occupancy and that there was a custom of transferability in respect of the darpattadar's interest in the locality. It was also pleaded that the plaintiffs have received mutation fee from the defendants. In the alternative it was pleaded that the suit is barred by adverse possession. The Courts below have concurrently held that the original darpattadars were mere tenants at will, that there is no custom of transferability in respect of the darpattadar's interest, and that the plaintiffs have never received mutation fee f from the defendants. The defendants had also pleaded that the suit was not maintainable in the civil Court and was not competent without the service of a notice to quit as required by Section 57, Orissa Tenancy Act, but this plea was negatived on the finding that this was a suit to eject a trespasser. With regard to the plea of adverse possession the Appellate Court took the view that defendants 1 and 2 cannot be deemed to have prescribed anything more than the right of a darpattadar as they never manifested any intention to hold the lands in any different right, and, therefore, the plaintiffs have a right to eject the appellants who g are merely darpattadars as they have no right of occupancy in the suit lands. Hence the second appeal to this Court.

(3.) In my opinion the appeal must succeed in any view of the case whether the rights of the parties are governed by the Orissa Tenancy Act or by the Transfer of Property Act. Let us assume that the rights of the parties are governed by the Orissa Tenancy Act. In that case Section 57 provides that an under-raiyat shall not be ejected by his landlord except on the expiration of a written lease or when holding otherwise than under a written lease at the end of the agricultural year within which a h notice to quit has been served upon him by his landlord. The finding of the lower Appellate Court is that the defendants merely prescribed the darpattadar's right and were in possession for over 12 years. Therefore they cannot be evicted as no notice has been served as required by Section 57. This question was considered under point 3. The learned Subordinate Judge observes that the darpattadar being a tenant-at-will no formal notice is necessary, but he omitted to consider the provisions of Section 57. The rulings relied upon by him, namely Ramdhani Gope V/s. C.V. Scott A.I.R. 1925 Pat. 256 and Ramkishun Pande V/s. Bibi Sohila A.I.R. 1933 Pat. 561. are not cases of under-raiyats but are cases of tenants-at-will or licensees. It may also be observed that the trial Court took the view that the relationship between the parties is not that of a landlord and tenant or under-jtenant and, therefore, the suit is a suit against a trespasser and was cognizable by the civil Court. He also omitted to consider the effect of Section 57.