JOGENDRA CHANDRA MUKHERJI Vs. MONMOHINI DEBI

JUDGEMENT

(1.) This appeal is by defendants 1 and 2 in the suit which has been decreed in the plaintiffs favour by both the Courts below The suit concerns a plot of homestead land belonging to defendant 6. The plaintiff obtained a nim howla patta from the latter, but on the next day the defendants took possession of the land and the plaintiff was obliged to bring this suit for khas possession and establishment of her title. The defendants resisted the suit on the ground that there was a prior contract of sale by virtue of which defendants 1-5 were put in possession. It appears that defendant 2 is also a mortgagee from the lessor. The lessor supported the defence. Both Courts came to the conclusion that the defence is untrue and decided the suit in the plaintiffs favour. Defendants 1 and 2 have come up now on appeal to this Court. The learned vakil appearing for them contends, in the first place, that there being a subsisting mortgage no decree should have been passed without safeguarding the mortgagee's rights. There was no issue upon the mortgage and it does not appear that the mortgagee's rights are affected in any manner by this litigation.

(2.) The second ground taken turns upon the fact that in the settlement khatian the plot in dispute is recorded as half howla and half karsha. The contention is advanced that, in respect of a moiety share of the land, the plaintiff being an under-raiyat the lease given to her is invalid by reason of Section 85, Ben. Ten. Act. The learned Subordinate Judge dealt with this contention very briefly. He said that the lease was granted in respect of homestead land and not agricultural land, and so this contention cannot prevail. It is argued that this view is wrong. Undoubtedly the land is homestead, and it does not appear that it is held as a part of any agricultural holding or that defandant 6 is even an agriculturist. If the statement in the judgment of the trial Court is correct the land has been homestead from before the permanent settlement. The Bengal Tenancy Act has no operation as-regards homestead lands and the reference to Section 85, Ben. Ten. Act, does not seem to be pertinent.

(3.) It is argued, however, that the plot having been recorded karsha or occupancy raiyati in eight annas the legal effect must follow. Various authorities were quoted. It was urged that the case of Manik Borai V/s. Bani Cliaran Mondal [1911] 13 C.L.J. 649, where it was said that the question of invalidity of the lease could be raised only by the landlord, proceeded on the question of estoppel and that the true position of an under-raiyati lease for over nine years as being wholly void was laid down in Jarip Khan V/s. Durfa Beiva [1913] 17 C.W.N. 59, and that the defendants who are strangers can challenge the plaintiffs title as being invalid. The matter has been set at rest now by the Full Bench case of Chandra Kanta Nath V/s. Amad All Hazi A.I.R. 1921 Cal. 451. It was decided that when the lease, purporting to be of a permanent character, is granted by a person who, on the face of the document, confesses to have a higher status than that of a raiyat, the grantee may invoke the doctrine of estoppel. Here the plaintiff got a permanent lease. The; grantor is estopped. The defendants; claiming through the grantor are equally estopped. The question of invalidity of the lease may be raised by the landlord; or a person claiming through him, or by some one who has a permanent title, but; not by the grantor or anyone claiming] through him. It was suggested that the; defendants were strangers. They cannot have a better right than the raiyat himself. If the plaintiff can maintain the suit against the raiyat she has a right to the land and the defendants, who have no title whatever, cannot be allowed to remain on the land. It was contended on a, reference to Harendra Lal V/s. Hari Dasi Debt A.I.R. 1914 P.C. 67 that the parties committed a, fraud on the registration office. That position was also discussed in the Full Bench case. If the parties knew all along, the real character of the land, no questions of estoppel would arise. That is not the case here. As was observed by Mookerjee, A.C.J., the question of the true nature of the tenancy is often a matter involved in doubt and uncertainty.