RABINDRA CHANDRA GHOSH Vs. MAHTHA GAURI SINGH

JUDGEMENT

(1.) This appeal arises out of a suit which was decreed in part by the Additional Subordinate Judge of Hazaribagh but has been dismissed in its entirety by the Judicial Commissioner of Chota Nagpur. The appellants (who are the sons of the original plaintiff and were substituted in his place upon his death during the pendency of this appeal) are admittedly the proprietors of Taluk Jagodih which includes village Phulwaria, the subject matter of the present suit. This village was granted by one Raja Bed Khan by way of khorposh or maintenance to his son Jobraj Khan long ago and in 1864 Jobraj Khan granted a mukarrari in respect of it (subject to the payment of a quit rent) to a certain person whose interest has now passed to the defendants. As the grant of Raja Bed Khan was determinable on the extinction of the male line of the grantee and according to the plaintiff such an event did happen on the death of Jobraj Khan, the plaintiff in the year 1918 sent a notice to the defendants asking them to give up possession of the disputed village. The defendants, however, refused to give up possession and so the plaintiff brought the present suit which has been dismissed by the learned Judicial Commissioner. Now, it seems to have been conceded before the learned Judicial Commissioner that the disputed village was liable to be resumed upon the death of Jobraj Khan and that he had died without male issue about forty years ago. The only material plea that was raised before him was one of limitation and it was dealt with by him in these words: The final position, therefore, is as follows: (1) Jobraj Khan died 40 years ago, (2) plaintiff became aware of this fact, or can be reasonably expected to have become aware of this fact, shortly afterwards, (3) defendants admittedly continued in possession of the disputed land for 40 years after Jobraj's death without notice from the plaintiff to quit, (4) during this time defendants possession was that of a trespasser, and not that of a tenant, and (5) therefore defendants have been in adverse possession of the land for more than the statutory period of 12 years with the result that plaintiff is now debarred from ejecting them therefrom under the law.

(2.) The learned Judicial Commissioner has not stated clearly what precise evidence there is in the case to show that shortly after Jobraj Khan had died, the plaintiff became aware of his death; but even assuming that he has correctly surmised the position, the inference of law which he draws from the facts before him appears to me to be not correct. The fact which ought to be borne in mind in determining the question of limitation is that according to both parties case, the defendants have continued to pay rent to the plaintiff since the death of Jobraj Khan in the same manner as they used to pay it to him before his death. It was therefore urged on behalf of the plaintiff before the Judicial Commissioner that the case came within the application of Section 116, T.P. Act, and the result of the continued payment of rent by the defendants was that when the lease was determined on the death of Jobraj Khan, a new tenancy was created by reason of the plaintiff accepting rent from the defendants, such a tenancy being in law a tenancy from year to year. The learned Judicial Commissioner held that Section 116, T.P. Act, had no application to the case for the reason that the defendants were never in the position of lessees under the plaintiff and he quoted in support of his opinion a passage from the decision of Jwala Prasad, J. in Ram Rachhya Singh V/s. Kamakhya Narain Singh AIR 1925 Pat 216.

(3.) Now, even though Section 116 may not be directly applicable to this case, we have still to consider the legal effect of the acceptance of rent by the plaintiff after the mukarrari grant by Jobraj Khan to the defendants predecessors-in-interest became a defunct instrument, because the case of the contesting respondent in the Court below seems to have been that merely by such acceptance of rent all the terms of the mukarrari lease granted by Jobraj Khan to the predecessors-in- interest of the defendants became binding upon the zamindar. I think that the answer to the problem is provided by the decision of the Judicial Committee in Beni Pershad Koeri V/s. Dudhnath Roy (1900) 27 Cal 156. In that case a zamindar had granted a village to his nephew for maintenance, the grant operating only for life. The grantee survived the grantor and by an ekrarnama acknowledged the succeeding zamindar to be entitled to the village. He had, however, already executed a patta in favour of a third person describing him to be a permanent lessee and the zamindar who succeeded the grantor accepted rent from him at the rate stipulated in the patta and did not disturb his possession for some time after the death of the original grantor. Nevertheless when the zamindar subsequently claimed the village as part of the inherited zamindari, it was held: (1) that the original grant not having extended to more than the life of the grantee, the patta was void as against the successor in title of the grantor; and (2) that the acceptance of rent at the rate provided in the patta could not have the effect of confirming the document in its entirety. Now, the decision of the Judicial Committee appears to me to cover fully the points raised in the present case. It is clear that the duration of the mukarrari granted by Jobraj Khan could not exceed that of the original grant and from the mere fact that the plaintiff continued to accept rent from the defendants, it cannot be inferred that he confirmed all the terms of the mukarrari in favour of the defendants. The law on the subject has been stated in Woodfall's Law of Landlord and Tenant in these words: If a man enters upon a void lease, he is not a disseisor but a tenant-at- will under the terms of the lease in all other respects except the duration of time; and when he pays or agrees to pay any of the rent therein expressed to be reserved, he becomes a tenant from year to year upon the terms of the void lease so far as they are applicable to and not inconsistent with a yearly tenancy.