LALA MOHABIR PERSAD Vs. CHARLES FOX

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in an action for ejectment. The plaintiff alleged that Mr. Charles Fox, originally described as defendant No. 12, was his tenant in respect of the disputed land in which he had no guzashta or transferable right or any sort of title except the right to cultivate it. The plaintiff further alleged that defendant No. 12 had from time to time alienated portions of the land comprised in his tenancy, to the other defendant and that on the 9 August 1902, he completely divested himself of all this interest in the land with the result that he ceased to be the tenant of the plaintiff and the other defendants who came into occupation were trespassers without any title. In this view of the matter, he prayed that a decree for ejectment might be made against defendants 1 to 11, the transferees, who, according to him, held possession wrongfully. The defendants filed two written statements, one on behalf of Mr. Fox and the other on behalf of the transferees. Both alleged that defendant No. 12 had guzashta light in the land in dispute and had full right to transfer the same. They further pleaded that defendant No. 12 and other tenants have and had a transferable right which they were competent to sell in any way they chose without the permission and consent of the landlord. They went even further and asserted that by usage, custom and practice, defendant No. 12 had full right to transfer the whole or a part of the land of his tenancy. Upon this state of the pleadings, nine issues wore raised, of which we need mention only three for our present purposes, namely the fourth, fifth and sixth which were in the following terms: 4. Had the defendant No. 13, the vendor of the defendants 1 to 12, guzashta right or transferable right of occupancy in the land in suit? 5. Had the defendant No. 13 and have the other raiyats of Mauza Ghogha the right to transfer their holdings without the landlord's consent? 6. Is there any custom or local usage in Mauza Ghogha for riayats to transfer their guzashta rights in whole or part without the landlord's consent?"

(2.) In the Court of first instance, the Subordinate Judge found that Mr. Fox had no transferable right of occupancy in the land in suit and that consequently the transferees from him had acquired no valid title to the land claimed by the plaintiff. In the course of the hearing before the Subordinate Judge, however, the defendants set up an additional plea. They stated that as it had been established upon the evidence that Mr. Fox had paid rent at an uniform rate for twenty years, they were entitled to the benefit of the presumption which arises under Section 50, Sub-section (2) of the Bengal Tenancy Act. The Subordinate Judge went into this part of the case also, but he came to the conclusion that the presumption relied upon was of no avail to the defendants because it was clear from the evidence and the circumstances of the case that the holding came into existence sometime after the Permanent Settlement. In this view of the matter, the Subordinate Judge decreed the suit with costs against the defendants. Two appeals were then preferred to the District Judge, one by Mr. Charles Fox, and the other by the transferees. The learned District Judge upon the hearing of the appeals came to the conclusion that the presumption mentioned in Section 50 Sub-section (2) of the Bengal Tenancy Act was applicable to the case; but inasmuch as this presumption had not been pleaded in the written statement and as the plaintiff had not been given a fair chance of rebutting the presumption, he gave the plaintiff an opportunity to adduce fresh evidence. The plaintiff expressed his willingness to have Mr. Fox examined upon this question of the origin of the tenancy and Mr. Fox subsequently gave his evidence. The learned District Judge upon this evidence held that the onus which lay upon the plaintiff of rebutting the presumption had not been discharged. He, therefore, allowed the appeal and dismissed the suit with costs. The plaintiff has now appealed to this Court; and on his behalf the decision of the Court of appeal below has been challenged substantially on two grounds, namely first, that Section 50, Sub- section (2) of the Bengal Tenancy Act, has no application, inasmuch as the present suit is not one under the Bengal Tenancy Act, and secondly, that the defendants ought not to be allowed to rely upon the presumption or to set up any case of permanent tenancy, inasmuch as this was contradictory to the position which they had deliberately taken up in their written statements in the Court of first instance. In answer to this argument it has been contended by the learned Counsel for the respondents, that although the present suit is not one under the Bengal Tenancy Act, and consequently Section 50, Sub-section (2), has no direct application, yet from the facts found by the learned District Judge, the inference follows that Mr. Fox held a permanent tenancy and that he was entitled to transfer, either in whole or in part, the lands comprised therein.

(3.) As regards the first ground taken on behalf of the appellant, there can be no possible question that the view taken by the Court below is erroneous and cannot be supported. Before the learned District Judge, reliance was placed on behalf of the plaintiff upon the judgment of this Court in the case of Rasamey Purkait V/s. Srinath Moyra 7 C.W.N. 132, in which it was ruled that the application of Section 50 of the Bengal Tenancy Act is limited to suits or proceedings under the Bengal Tenancy Act.