CHANDRA KUMAR DE Vs. KCMUKHERJEE

JUDGEMENT

(1.) These 11 appeals are by the defendants in suits for assessment of rent on the ground that the defendants have been holding the lands without payment of rent to the plaintiff landlord. Many suits of the same nature were tried by the trial Court which decreed 3 suits ex parte and dismissed all the other suits on contest. In 16 cases the landlord appealed and the Court of appeal below dismissed one of the appeals and decreed the other 15 appeals. Out of those 15 appeals, second appeals have been filed in this Court in 11 suits. The suits which are in appeal to this Court are suits 86 to 91, 111 to 114 and 184 of the trial Court. The same arguments have been made in all the cases. The first point taken by the learned Advocate for the appellants is that the suits are not maintainable at the instance of the plaintiff. The plaintiff is the receiver appointed by the High Court of the estate in question. It is urged that he did not file the authority of the Court to institute these suits, and without the Court's authority the plaintiff receiver cannot maintain the suits. Upon hearing the learned Advocates on both sides it appears that this point of maintainability was not raised in the trial Court in any of the 11 suits now under appeal and no issue as to maintainability was framed in the trial Court. In only one of the 19 suits tried by the trial Court was the issue of maintainability raised, but the trial Court before judgment recast the issues and tried the issue of maintainability in all the suits. The point was only taken in the argument in the trial Court and at that time on 15th December 1932 the plaintiff receiver filed an application to file the authority of the Court, but the authority which he filed afterwards was found to be an authority to him as receiver of the estate of the ijaradars and not receiver of the present estate.

(2.) Afterwards, in the appellate Court, the receiver rectified his mistake and filed an authority granted by an order of this Court in 1920. That authority was granted by Buckland, J., to the Official Receiver of the High Court as receiver of the estate in question. It was not granted by name to the individual holding the position of Official Receiver. That authority therefore covers the plaintiff who was appointed official receiver long after 1920. In the circumstances the plaintiff had authority to institute the suits. Such authority from the Court may be filed by the receiver at any stage of the suit; the authority being required as a question of the bona fides of the receiver. The next point taken by the learned Advocate is that the suits are barred by limitation. This point was dealt with by the trial Judge who held that the defendants were in possession for nearly a century and their possession was open, that the property in suit was tanks, and the defendants had long held possession of them without payment of rent and such open enjoyment made their possession adverse to the plaintiff. The Court of appeal below appears to have committed an error. That Court thought that the trial Court had not decided the issue, but the Court of appeal below upon the facts of the case came to the conclusion that no question of limitation properly arose in these suits. The facts of these cases are that these tanks are within the revenue paying estate of the plaintiff. The defendants are all raiyats in the estate of the plaintiff and they have been for long possessing these tanks of their landlord without payment of rent. It may be stated that the estate from 1836 onwards was in the hands of ijaradars. It was only in 1931 that the estate came into the possession of the official receiver of the High Court.

(3.) The learned Advocate for the defendants has cited the cases of Mt. Chundrabullee Bebia v. Luckhea Debia Chowdrain (1865) 10 M I A 214 and Gagan Chandra V/s. Birendra Kissore 1915 Cal 590. Upon perusal of those cases it appears that the facts of those cases are entirely different from the facts of the present suits. The learned Advocate for the respondent has quoted the case of Nityanund Ghose V/s. Kissen Kishore (1864) W R Act X Rule 82. In that case it was held that where A holds and cultivates B's land, A is by the universal custom of this country B's tenant and is bound to pay him fair rent. In Prasana Kumar Mukerji V/s. Srikanta Rout (1912) 40 Cal 173 it was held that mere non-payment of rent does not by itself constitute adverse possession in a tenant against his landlord. In Jagadeo Narain Singh v. Baldeo Singh 1922 P C 272 the tenants and their predecessors had paid no rent since 1839 but the lands being within the revenue paying estate of the landlord, their Lordshipsheld that the burden was on the tenants to prove that they were entitled to hold them free of rent and that their possession was not adverse to the plaintiff so as to render the claim for assessment of rent barred by limitation. In the present suits the defendants are all raiyats of the plaintiff's estate. In course of time they took possession of the khan tanks of the plaintiff and they held possession for many years without payment of rent. The record of rights were finally published on 24 March 1920. It was there recorded that these tanks were within the estate of the plaintiff, that the defendants, tenants of the estate, were possessing these lands as settled raiyats of the villages, that they had been paying no rent for the same but were liable to payment of rent.