JOHABAJ KHAN Vs. SRIKRISHNA DEY

JUDGEMENT

(1.) The question in this appeal is whether the landlord, a Lakhiraj bajiaftidar in a temporarily settled estate in Balasore, is entitled to eject a chandnadar after service of a notice to quit. The plaintiffs title as landlords was challenged by the defence, but has been concurrently found against by the trial Court and the District Judge on appeal, and there is no further dispute about it. The defence also denied service of notice, but this too has been concurrently found against the defendants appellants, and there is no further dispute about it. The defendants have been recorded in successive Record of Rights (commencing with the Provincial Settlement) as chandnadars, and for the current settlement their rent has been raised from Re. 1 to Re. 1-4-0 (apparently in accordance with para. 126 of Mr. Dalziel's Final Report on the Revision Settlement of Orissa, 1922-1932). The trial Court decreed the suit on the ground that the landlord prima facia has a right to all the lands included in his mahal or tenancy, that the defendants have totally failed to show that by custom or usage they are entitled to remain on the land against the will of the landlord, that they are tenants at will, and that their rights have been terminated by the notices served on them.

(2.) The District Judge on appeal found that there was absolutely no reliable evidence of any local custom or usage by which the defendants, who had appealed to him; could acquire any permanent right, and after negativing the contentions of permanency and of a right of occupancy that were urged before him on the authority of A.M. Dunne V/s. Nobo Krishna (1890) 17 Cal 144, and Section 6, Act 10 of 1859, upheld the decree of the trial Court. There was then a second appeal to this Court, and James, J., before whom it was first placed, considered, doubtless in view of the general importance of the question raised, that the matter should be heard by a larger Bench. The appeal thus came before Fazal Ali and Varma, JJ., who were of opinion that the view taken in 1925 by Das J., (sitting with Foster J.,) in Kedar Nath Mullick V/s. Bikal Prusti 1 CLT 5, and in Krishna Charan Mahanty v. Punai 1 CLT 8, that the whole onus lies upon the chandnadar who resists the landlord's action for ejectment to establish a right to remain on the land either under contract or under custom requires consideration by a larger Bench in view of the intention and scheme of the Orissa Tenancy Act, and of certain observations in later decisions. The case has accordingly been placed before us for decision.

(3.) Now, there can be no doubt or controversy that in an action of ejectment, when the defendant is admittedly in possession of the land in dispute, the onus is initially upon the plaintiff to prove his title thereto. It is also clear that when the plaintiff has proved his title as landlord the burden shifts to the defendant, if he claims to be a tenant to prove that the tenancy is not precarious but entitles him to continue in occupation. A chandna tenancy, as will be seen presently, is an essentially non-agricultural tenancy, and if nothing further were known about it, the tenant will have to be considered as holding from year to year, and liable to be ejected by a proper notice to quit. In an action of ejectment from homestead land decided before the passing of the Bengal Tenancy Act, in Prosunno Coomaree Debea V/s. Sheikh Button. Bepary (1877) 3 Cal 696, Garth, C, J., said at p. 699: The truth, is, that the terms of a holding, as between landlord and tenant, must always be matter of contract, either expressed or implied, If they enter into an express agreement of tenancy either written or verbal, such agreement, generally defines the terms of the holding. If on the other hand, a tenant is let into possession without any express agreement, and pay rent he becomes a tenant at will, or from year to year or, in other words, holds by the landlord s, permission upon what may be the usual terms of such a holding by the general law, or by total custom, and in such a case, be is of course liable to be ejected by a reasonable notice to quit. Occasionally there are local customs by which special terms and incidents are engrafted upon the contract of tenancy; but the existence of the custom in such cases must be a matter of proof and no Judge has a right to act upon such customs unless their existence is duly established. In this case no such custom is even suggested and as there was no express agreement of tenancy and no evidence of its origin, the defendants must be considered as holding from year to year, and liable to be ejected by a proper notice to quit.