SADANANDA MANDAL Vs. KUMAR JYOTISHKANTA RAY

JUDGEMENT

(1.) This appeal is on behalf of the defendants and arises out of a suit for recovery of khas possession of 161 3/4 bighas of land on the allegation that the defendants have no title to hold these lands after the death of the two lessees of the land, namely, Sambhuram and Darika, Sambhuram obtained a lease for this property in 1875 from the owner at that time. The proprietary interest appears to have passed subsequently into the hands of there persons and in 1894 Sambhuram and his brother Darika executed three separate kabuliyats in favour of each of the three proprietors to the extent of his one-third share of the laud, that is to say 53 bighas odd, and the rent payable for the entire land was also split up into three shares payable to each separately. Sambhuram died in 1902, Darika died in 1938 and the present suit has been brought in the year 1920. The plaintiff derived his title to the entire land by virtue of a partition between him and his other two co-sharers under which the entire mouza within which these lands are situate fell to the plaintiff's share. The Subordinate Judge decreed the suit in part only declaring the title of the plaintiff as the sole zemindar of the suit lands, but his claim for khas possession was dismissed on the finding that the defendants had a permanent heritable interest. On appeal by the plaintiff that decree was reversed so far as the claim for khas possession had been dismissed. The Additional District Judge made a decree in favour of the plaintiff for khas possession and also for mesne profits directing that the mesne profits should be ascertained afterwards.

(2.) The defendants in their, appeal to this Court urged three grounds firstly they urged that one of the kabuliyats Ex. 8 (1) executed in favour of Kali Prosanna one of the co-sharer proprietors, shows that the interest conferred upon the lessees was heritable; secondly, it is urged that the landlords having accepted rent from the defendants since the death of Sambhuram in 1902, had recognised the defendants as their tenants; and the third ground is that at any rate the defendants having been in possession of Sam-bhuram's share since 1902 in the assertion of their rights as tenants on the land have acquired the limited interest of a tenant with regard to that share by adverse possession. It seems to me that the learned Judge is wrong in his construction of the kabuliyat executed by Sambhuram and Darika in favour of Kali Prosanna. It is true that the various clauses in the kabuliyat are not incompatible with the construction that a mere grant for life was intended, but Clause 15 expressly provides "We as well as our heirs and representatives shall be bound and liable in the same manner as we are, by all the terms and conditions of this kabuliyat". This clause, in my opinion, clearly implies that heritability was contemplated and it cannot be said that the tenancy came to an end at the death of Sambhuram and Darika. The plaintiff's claim for khas possession with regard to that portion of the land must, therefore, fail.

(3.) The second and the third contentions are connected together. It is not always a fact that where rent receipts are granted with the word "marfatdar" it is conclusive that there was no recognition by the landlord of the person who pays the rent as a tenant, as was observed by Sir Lawrence Jenkins Chief Justice in the case of Probhabati Dasi V/s. Taibaturinessa Chaudhurani 20 Ind. Cas. 684 : 17 C.W.N. 1088 : 19 C.L.J. 62 but the Court should determine in each case whether on a consideration of all the facts a legal inference can be drawn that there has been a recognition establishing the relationship of landlord and tenant between the parties. Here it appears that one of the tenants died in 1902 and rent has been paid with regard to his share, from that date till 1918, although the rent receipts have been given to the defendants as marfatdars. From this a legal inference, can legitimately be drawn that the landlords who were entitled to take possession of the share of Sambhuram in the leasehold to the extent of two-thirds did not do so but allowed the heirs of Sambhuram to remain in possession and received rent from them and such conduct amounts to recognition of the tenants.