PRAHLAD MOHANTI Vs. PRAHLAD CHANDRA DAS

JUDGEMENT

(1.) This second appeal, which is by the defendant, arises out of a suit to recover possession of 4.86 acres of land and mesne profits. The suit was dismissed by the trial Court, but, on appeal, this decision was reversed. The learned Subordinate Judge gave the plaintiff a decree, entitling him to recover possession of the land, but did not give him a decree for mesne profits. The land in suit is part of, an occupancy holding, situated in an estate of which the plaintiff is the proprietor. The plaintiff assorted that this occupancy holding had been in the possession of one Sushilabala Dasi; that he had sued Sushilabala Dasi for arrears of rent and obtained a decree against her that, in execution of this decree, he had caused the occupancy holding to be sold and purchased it himself; that he had been put in possession of the occupancy holding under a writ for delivery of possession, which was duly served on 31 July 1938; that he had subsequently settled the land with certain persons, who had grown crops on it; and that, on 18 December 1938, the defendant had entered on the land and forcibly cut and removed these crops. The plaintiff, or rather His mother, purchased the revenue-paying estate, in which the land is situated, at a sale for arrears of land revenue in 1931. Sushilabala Dasi was one of the co-proprietors of this revenue-paying estate and the defendant was one of several co-tenants, to whom, originally, the occupancy holding belonged. Sometime prior to 1929, Sushilabala Dasi sued these co-tenants for arrears of rent, and, in execution of the decree, which she obtained, purchased the holding. It so happened that the defendant was in the employment of Sushilabala Dasi. He asserted that Sushilabala Dasi did not, in consequence, evict him from that portion of the holding, which had 3 been in his possession, and, subsequently, settled it with him under a patta granted on 4 August 1929. In the record of rights, which was finally published on 1 January 1929, Sushilabala Dasi was recorded as being in possession of the occupancy holding under Section 26(2), Orissa Tenancy Act. The defendant, further, asserted that he had known nothing of the rent suit, which the plaintiff had instituted against Sushilabala Dasi, or of the proceedings in execution of the decree. It was not, he asserted, until 1939 that the plaintiff or his servants forcibly entered on the land and evicted him.

(2.) The learned Munsif came to the conclusion that Sushilabala Dasi had, sometime prior to 1929, purchased the original occupancy holding at a sale in execution of a rent decree and had, subsequently, sublet a portion of it to the defendant. The defendant had, in the opinion of the learned Munsif, continued in possession until 1939. The learned Munsif took the view that the plaintiff had sued Sushilabala Dasi for arrears of rent, merely in order to obtain a decree, and purchase the holding, so as to have a pretext for forcibly evicting the defendant. It is perfectly clear that such interest as Sushilabala Dasi had in the land in suit was an interest, which belong, ed to her as a co-proprietor of the revenue-paying estate in which the land is situated, and that that interest passed to the mother of the plaintiff at the revenue sale. In other words, Sushilabala Dasi never was a tenant under the plaintiff or his mother; Sushilabala Dasi was under no liability to pay rent to the plaintiff; and, if the plaintiff contrived to obtain against her what purported to be a decree for arrears of rent, the sum due under that decree could not be a charge on the land in suit. Apart from that, when Sushilabala Dasi subletthe land in suit to the defendant, the status of the defendant was that of a raiyat, and, as a result of the revenue sale, the relationship of landlord and tenant was created, by operation of law, as between the purchaser at the revenue sale and the defendant. The learned Subordinate Judge does not appear to have dissented from the findings of fact which had been arrived at by the learned Munsif. Rai Bahadur Chintamani Acharya drew my attention to an observation of the learned Subordinate Judge which runs thus: But convincing evidence is wanting for a conclusion that the defendants continued to remain in possession from the date Ex. C was created.

(3.) Immediately before making this remark, the learned Subordinate Judge had pointed out that the defendant had not been in a position to produce more than two receipts showing payment of rent, and that these receipts had been granted in 1930 and 1931. The learned advocate for the respondent suggested that the lower appellate Court had come to the conclusion that, while Sushilabala Dasi had settled the land in suit with the defendant in 1929, she had, subsequently, in or about 1931, terminated the settlement. The learned Subordinate Judge did not, however, say so, and I am unable to regard the sentence in his judgment, which I have quoted, as a finding of fact binding on me in second appeal. There was not a particle of evidence to show, either that Sushilabala Dasi resumed possession of the land in suit before the revenue sale, or that, subsequent to the revenue sale, the plaintiff settled it with her. As the learned Munsif rightly pointed out, there was a presumption that the defendant, havirig been put in possession of the land in 1929 by Sushilabala Dasi, and having paid rent to her in succeeding years, had continued in possession. The learned Subordinate Judge, while giving (the plaintiff a decree, entitling him to recover possession of the land, dismissed his claim for mesne profits on the ground that he had not obtained possession of the land under the writ, which he took out in the execution proceedings. That, I think, removes any doubt there e might otherwise be as to the learned Subordinate Judge not having dissented in any way from the findings of fact arrived at by the trial Court. The ground, on which the learned Subordinate Judge decreed the suit, was one which had not been taken in the trial Court, namely, that the plaintiff, as a purchaser at a revenue sale, was entitled to annul the tenure, created by Sushilabala. Dasi in favour of the defendant under Section 52 of Art. 11 of 1859. The learned Subordinate Judge observed: The plaintiff may rely upon several different rights alternatively, although they may be inconsistent. The only limitation to such assertions of different rights is that the pleadings must not be thereby rendered embarrassing.