SECRETARY OF STATE Vs. BABU RAJENDRA PRASAD

JUDGEMENT

(1.) This is one of a number of appeals by the Secretary of State for India in Council arising out of actions in ejectment and relating to building plots in the Town of Daltonganj. There was an alternative claim in eaou case for settlement of a fair rent. This alternative claim has been granted in each case. In this action the claim for ejectment failed. The settlement of fair rent raises a question of jurisdiction and arises in these circumstances. In this case, the claim for ejectment failed and the Judge proceeded to settle a rent by way cf enhancement of the rent already being paid. In other cases the claim for ejectment succeeded and the Judge proceeded to fix a rent on payment of which the defendants could remain in possession. In those cases where the action for ejectment succeeded, a fair rent was settled by the Court at the instance of the plaintiff, as it was stated that there was no intention to eject the defendants, and although it was desired to have the decision of the Court on the merits of that question, on payment of a fair rent, the tenants would be allowed to remain in possession. There was no suggestion that the Court was exercising the jurisdiction to settle a fair and equitable rent or to enhance the rent under the Chota Nagpur Tenancy Act. Indeed, so far as enhancement was concerned, the Court proceeded to allow the plaintiffs claim for considerations which would not apply to the exercise of jurisdiction under that Act. Therefore, in neither case could it be suggested that the Court was exercising a statutory jurisdiction in that regard. The relationship of landlord and tenant which existed is, in the first instance, a matter of contract, and by assessing rent to be paid by the tenant, the Court purports to make a bargain between the parties--a jurisdiction which it does not possess. It is rather difficult to imagine how the Judge thought that he had jurisdiction in this matter as the question is an elementary one. If authority for the proposition that no such jurisdiction exists were needed, it is to be found in Secretary of State V/s. Nistarini Annie Mitter 6 Pat 446 : 104 Ind. Cas. 109 : AIR 1927 Pat. 319, where Sir Dawson Miller appears to have stated: As this was not a suit relating to the agricultural land governed by the Bengal Tenancy Act, the Court had no power to impose upon the parties a bargain not of their own making.

(2.) That matter is clear. 1 leave for consideration the question which arises in this connection in one other of the appeals which will be dealt with on the facts of that particular case. But so far as the question was one of making a bargain for the parties and not the interpretation of a contract or lease entered into by those parties, I hold that the claim for enhancement of rent or settlement of fair and equitable rent must fail in every case. I should have stated that part of this appeal, relates to the enhancement of rent towards which the appeal is directed. The appellant contends that the rate of enhancement is not sufficient, but this question for the reasons which I have stated does not arise. The land, the subject- matter of this dispute, is a part of the khas mahal. It formed part of a revenue- paying estate which was purchased by Government in default of paj merit of revenue about 120 years ago. There is no doubt that during the course of years the Town of Daltonganj, which was in all probability in its origin a village, developed into a town of some importance and became the headquarters of the Division. This and some other facts were proved in the case for the purpose of establishing a matter with which we now have no concern, that is, the increasing value of the land. The land in dispute was let to one Badrinath for building purposes at a date of which there is no evidence. The defendants contend it was about 60 or 70 years ago; it measured "38 acre and was held at a rent of 13 annas 6 pies. In 1894, there commenced a settlement which was known as Mr. Sunder's settlement which was completed in 1896. The rent was enhanced under that settlement to Rs. 3. Subsequently Badrinath sold 21 acre leaving in hand 17, the area now in dispute. Government agreed to this transfer which was in 1908 and apportioned the rent for the balance at Rs. 1-5-0. The land appears to have been the subject-matter of a mortgage by Badrinath and in 1913 in execution of a mortgage decree defendants Nos. 3 to 5 purchased the land but were not recognized by the landlord. It was contended, therefore, that in any event they were trespassers and liable to ejectment. That point, however, I will deal with in a moment.

(3.) In 1926 there was a notification by Government calling upon the holders of building sites in Daltonganj including the holder of the plot in dispute, to execute leases at an increased rent. This the defendants failed to do, and in September 1928, a notice calling upon the defendants to quit on March 31, 1929, was issued. The learned Judge in the Court below has held that the notice was served personally on defendant No. 1 but was not served on defendant No. 2 nor was it served on defendants Nos. 3 to 5. Against this finding there is no appeal. Defendants Nos. 3 to 5 after their purchase in 1913 proceeded either to demolish or alter the buildings then on the land and submitted plans for alteration to the Deputy Commissioner as Chairman of the District Board, which were sanctioned by him. The learned Judge in the Court below has held that the defendants had a permanent right in the land by reason of the fact that the defendants were allowed to build and to erect permanent structures to the knowledge of the landlord. He has held, however, that no occupancy rights existed in the defendants as the Chota Nagpur Tenancy Act did not apply. As regards the latter question, the facts are as follows: It is admitted by both parties that the land was let out for building purposes. It was not pleaded in the written statement that rights existed under the Chota Nagpur Tenancy Act and the question appears to have been raised for the first time in the argument before the Judge in the Court below. The learned Judge has stated that it was not the contention of the parties that Badrinath was an agriculturist, nor is there any evidence to lead one to that conclusion. In those circumstances the Judge was undoubtedly right in coming to the conclusion that as the land was let out for building purposes, no occupancy rights in the defendants existed. This is supported by the decision to which I have already referred in Secretary of State V/s. Nistarini Annie Mitter 6 Pat 446 : 104 Ind. Cas. 109 : AIR 1927 Pat. 319. The Government Pleader advances the argument that the learned Judge was wrong in coming to the conclusion that the defendants right was a permanent one. The learned Judge, relying upon the decision of the Calcutta High Court in Mohoram Chaprasi V/s. Talamuddin Khan 15 CLJ 220 : 13 Ind. Cas. 806 : 16 CWN 567, has come to the conclusion that the right was a permanent one. It appears that the Judge has based his conclusion on the presumption of a lost grant. By that I understand him to mean that the facts and circumstances of the case led to the inference that it was agreed by the landlord, when letting the land to Badrinath, that he should have a permanent lease. It is impossible to lay down any definite rule from what facts such inference could be drawn but the case upon which the learned Judge relies does not support his conclusion. In that case the facts that were established were first, the original tenant and his successor had been in occupation of the land for over 60 years; secondly, that the rent had never been varied; thirdly, that the tenancy had been treated by the landlord as heritable; and fourthly, that the land had been let out for residential purposes. Even assuming that those four facts were established, the inference would not be irresisitible, but in the case before us two facts, namely, the second and the third, have not been made out. Rent, as we have seen ii this case, has been varied from time to time. It was enhanced during Mr. Sunder's settlement, and he landlord in this case has treated it as liable to further enhancement by calling upon the defendants to execute leases at a higher rent. Had all the facts been established to which Mookerji, J. in that case referred, I do not agree that necessarily the inference of a permanent lease should be drawn, but in this case two at least of these four items are wanting as I have said.