P L D 1961 Dacca 57 (PLP)

These two appeals arise out of two title suits, being Title Suits Nos. 62 of 1953 and 76 of 1953. Title Suit No 62 of 1953 was filed by the plaintiffs in that suit for a declaration of their raiyati interests as well as of their title acquired by them by adverse possession and for confirmation of their possession to the 14 annas share of the suit land upon finding that the decree passed in Rent Suit No. 615 of 1947 and the sale held in the rent execution case are void, inoperative, ineffectual and not binding on them.

2. The defendant in that suit is Nanda Kumar Raj Bangshi. This defendant in Title Suit No. 62 of 1953 filed another title suit, being Title Suit No. 76 of 1953 against the plaintiffs in Tile Suit No. 62 of 1953 for declaration of his sikimi title and for khan possession of the suit land on account of his purchase of raiyati in execution of a decree for rent in Rent Suit No. 615 of 1947.

3. The plaint in one suit for all practical purposes has become the defence in other suit. Both the suits were heard together as they are between the same parties and involve common question of law and facts and were disposed of by one and the same judgment. So both the appeals are taken up for analogous hearing and are disposed of by one and the same judgment.

4. The facts of the case are as follows : There was a raiyati jote standing in the name of Rohini Kumar Roy under the landlord, the plaintiff in Title Suit No. 76 of 1953, on a jama of Rs. 10‑

8. This raiyati, it is alleged by the plaintiff, in Title Suit No. 76 of 1953, was a non‑transferable occupancy holding whereas the plaintiff in Title Suit No. 62 of 1953 alleged that it is a transfer able occupancy holding. It appears that this raiyati was sold in 16 annas share by Rohini Kumar Roy to Kali Chandra Raj Bangshi, the predecessor‑in‑interest of the present plaintiff, by a registered kahala dated the 10th Agrahayan, 1305 B.S. correspond ing to 25‑I1‑1898 and it was recorded in the khati‑n of mouza Kaushalyarbag under the landlord khatian of Sikimi taluk Fezuram Raj Bangshi and it was recorded in possession of the transferee Kali Charan Raj Bangshi by purchase. The khatian was finally published on or before 1917. It is the case of the plaintiffs in Title No. 62 of 1953 that this purchase was with the knowledge and consent of the landlord and they were recognised as tenants and as such their names have been recorded in the khatain under the landlord. The plaintiffs and pro forma defendant No. 2 are the heirs of Kali Charan and the plaintiffs' share is 14 annas and that of defendant No. 2 is 2 annas. These plaintiffs in Title Suit No. 62 of 1953 further asserted that they and their predecessors were in possession since their purchase and they have acquired a limited interest of raiyatis by their adverse possession for more than 50 years. They also pleaded payment of rent regularly from the time of their purchase but the parties being related dakhilas were not demanded nor granted to the plaintiffs. Further it appears that the disputed land is situated between the two houses of the plaintiff defendant No. 1 in Title Suit No. 62 of 1953. So it is contended that they, the transferees from the original tenant, are possessing the suit land to the knowledge of the landlord since the purchase and the present suit by the landlord is on account of recent fall out between the parties.

5. The case of the plaintiff in Title Suit No. 76 of 1953 is that the raiyati was a non‑transferable occupancy holding and it is not transferable without the consent of the landlord and that the transfer by Rohini Kumar Roy to Kali Charan Raj Bangshi, predecessor‑in interest of plaintiff was never recognised and the plaintiff is all through realising rent amicably and by suit from the tenant Rohini Kumar Roy who is defendant No. 3 in Title Suit No. 62 of 1953. In such position defendant No. 1 in Title Suit No. 62 of 1953, who is plaintiff in Suit No. 76 of 1953, instituted Rent Suit No. 615 of 1947 against defendant No. 3 Rohini Kumar Roy, the original tenant and obtained a decree and in execution of that decree auction purchased the tenancy.

6. It is contended by the plaintiffs in Title Suit No. 62 of 1953 that this sale is fraudulent and ineffective and did not affect their right, title and interest as they were not impeaded in the suit and that it is also void and inoperative. The plaintiff in Title Suit No. 76 of 1953 contends that by this purchase he purchased the raiyati right of Rohini Kumar Roy and after his purchase it has merged with Sikimi taluki right and he is entitled to recover khas possession of the suit land on account of his purchase in execution of the rent decree.

7. Both the Courts below found that before the amended Bengal Tenancy Act of 1928 occupancy raiyatt holding was not transferable without tire consent of` the landlord and the transfer of 1898 to Kali Charan Raj Bangshi, the predecessor‑in‑interest of the plaintiff and pro forma defendant No. 2 in Title Suit No. 62 of 1953 was unauthorised and that the landlord was not bound to recognise the transfer and in fact it was not recognised by the landlord as it appears from the Rent Suit No. 1259 of 1951 instituted by the landlord against Rohini Kumar for enhancement of rent under section 30 (b) of the Bengal Tenancy Act in which the landlord obtained a contested decree and that thereafter Rohini Kumar Roy himself deposited in Court the decretal amount in rent execution case No. 727 of 1943 which arose out of rent Suit No. 1050 of 1943 and thereaftcr the landlord instituted Rent Suit No. 615 of 1947 against Rohini Kumar Roy and obtained an ex parte decree and auction‑purchased the property in rent execution case No. 599 of 1947 and took delivery of possession through Court. The Court below further found that the processes of the rent execution case were duly served and there was no reason for suppression and that the landlord never recognised the transferee as tenant and the knowledge of transfer does not constitute recognition.

8. As to the question of limited interest of tenant by adverse possession both the Courts below have held that as the plaintiff landlord comes with a prayer khas possession on the basis of his auction‑ purchase in execution of the decree obtained in the rent suit and not on the ground of abandonment, the question of acquisition of limited interest of tenant by adverse possession did not arise. In these views of the matter both the Courts below dismissed Title Suit No. 62 of 1953 and decreed Title Suit No. 76 of 1953 granting khas possession of the disputed land to the landlord, the plaintiff in Title Suit No. 76 of 1953. Hence these two appeals by the plaintiffs in Title Suit No. 62 of 1953 and other by them as defendants in Title Suit No. 76 of 1953.

9. Mr. Nag, the learned Advocate for the appellants, contends that the Courts below totally misconceived the case of, plaintiffs in Title Suit No. 62 of 1953 who are defendants in Title Suit No. 76 of 1953. Mr. Nag's contention is that the questions whether the tenancy was transferable or not and, if not transferable, whether there was an abandonment of the holding by the original tenant by his transfer to Kali Charan Raj Bangshi giving right of re‑entry to the landlord and whether the said transferee was recognised by the landlord or not, are materials for the purpose of determination of the question whether the plaintiff in Title Suit No. 76 of 1953 has acquired any interest by purchase in execution of the rent decree obtained by him in rent suit against the original tenant; that even if it is found that there was no recognition of the transferee it is important to decide whether the transferee has acquired a limited interest of tenant by adverse possession for over the statutory period before the institution of any suit against the original tenant either in 1931 or in 1943 or in 1947 and that determination is absolutely necessary to determine the question of title acquired by the plaintiff in Title Suit No. 76 of 1953 by pur chase in court sale in execution of the rent decree obtained by him against the original tenant in 1947, but that the Courts below dismissed the claim of the plaintiff in the Title Suit No. 62 of 1953 and decreed the Suit No. 76 of 1953 on the finding that the plaintiff landlord in Title suit No. 76 of 1953 claimed khas possession not on the ground of abandonment but on the ground of his purchase in Court sale and refused to consider the question of acquisition of limited interest of tenants by the appellant, the plaintiffs in Title Suit No. 62 of 1953 by possession for over 50 i years by virtue of their purchase. Mr. Nag's further contention is that both the Courts below proceeded on the hypothesis that it is admitted that the disputed occupancy holding was not transfer able though there is no such admission, simply because occupancy holding was not transferable before the amendment of the Bengal Tenancy Act of 1928. On the contrary the case of plaintiffs in Title Suit No. 62 of 1953 is that it is a transferable occupancy holding. Simply because the occupancy holding before the amended Bengal Tenancy Act of 1928 was not transferable Courts below held that it was not transferable totally forgetting the fact that the occupancy holding before the said Amending Act was transferable by custom.

10. I think these contentions of Mr. Nag are of substance. The fact of transfer by Rohini Kumar Roy of his 16 annas interest in the raiyati holding to Kali Charan Raj Bangshi, the predecessor of the plaintiffs in Title Suit No. 62 of 1953 is not disputed. On the other hand, it is contended that it was an unauthorised transfer, because the occupancy holding was not transferable before the Amending Act of 1928. If it is not transferable but yet if it is transferred, it cannot be contended that the transfer is void, because the transfer without the consent of the landlord may not be binding on him but it is binding upon the transferor and the transferee. It is also admitted that the landlord plaintiff in Title Suit No. 76 of 1953 was aware of this transfer and in fact he could not but be aware of the transfer, because the disputed land is situated between the residential house of the plaintiff and that of the defendant in the suit and secondly because this fact of transfer and transferee's possession by purchase has been recorded in the R. S. khatian of the year 1917. Therefore, it is an established fact that the transferee is in posses sion of this occupancy holding from the date of his purchase in 1305 B. S., for over 50 years whether it is transferable or non transferable. If there is an abandonment of a non‑transferable occupancy by transfer, the landlord has got two rights‑one is to look to the original tenant and realisation of rent from him or to make the land khas from the unauthorised transferee.

11. Mr. De, the learned Advocate for the respondent, contends that until and unless there is an abandonment of the holding the landlord cannot file a suit for ejectment against the transferee and there cannot be any abandonment until and unless the original tenant does not pay the rent or refuse to pay rent on account of the transfer. So, according to Mr. De, he has only one right, namely, to proceed to realise rent from the original tenant who continued to pay rent and he cannot treat the holding abandoned.

12. I am unable to accept this contention of Mr. De. The transfer in this case is of the year 1898. Upto the year of 1931 there is no evidence on record to show that the original tenant has ever paid any rent to the landlord or that the landlord realised any rent from the original tenant and long 12 years' possession has been completed by the transferee before these dates. It is not only because of the transfer but also because non‑payment of rent by the original tenant amicably or by suit. Therefore, there is an abandonment. The landlord has got their right of re‑entry and file a suit for khas possession after evicting the unauthorised transferee, but he did not do that within the period of limitation. In order to obviate the difficulty he has resorted to file rent suit and a suit for enhancement of rent against the original tenant and these defen dants, it appears, not knowing their position in law, deposited the decretal amount in their anxiety to save the tenancy to safe guard their own interest, but naturally the decree having been against the original tenant Rohini Kumar Roy, they had to deposit the same in his name, otherwise there is no reason why this Rohini Kumar Roy after transferring his 16 annas interest to Kali Charan Raj Bangshi predecessors of the plaintiffs should pay the rent of the holding. The tenants tried to make out their case that they paid rent on their own behalf and the landlord accepted rent from them but as the parties are relations they never insisted on dakhilas nor any dakhila was granted to them. They failed to establish this case in either of the Courts below and the Courts below are of opinion that payment of rent, if any, by the defendant as a marfatdar, did not and could not constitute recognition of them as tenants by virtue of the transfer from the original tenant. In this connection I may simply quote Jenkins, C. J., and Mookerjee, J., stated in the case of Prabhabati Dassi v. Taibatunnessa Chowhurani (17 C W N 1088): "I am inclined to think that Courts have yielded too freely to the temptation of being binded to realities by the words marfat dar and gujrat‑dar and so that true facts have suffered. At the same time I am bound to admit that there are expressions in the cases which would suggest that where these words appear no recognition can be inferred. I think, however, each case must be determined on its own circumstances and the Court should determine in each case whether, on a consideration of all the facts not merely by giving undue weight to words used‑a legal inference is or is not to be drawn that there has been a recognition establishing a relationship of landlord and tenant between one who had paid and another who has received rent for a number of years." Unfortunately in this case both the Courts below found that payment of rent by the transferee of the disputed holding, in the name of the original tenant did not constitute recognition and the tenant‑defendant is also found to have failed to establish payment of rent to the landlord. Therefore, on the basis of recognition the tenant‑plaintiffs in Suit No. 62 of 1953 cannot succeed.

13. The next question is whether they can succeed on the basis of the acquisition of limited interest of tenants by right of adverse possession for over statutory period. But the difficulty has been created by the argument of Mr. De that their transfer does not constitute abandonment to give the landlord the right of re entry if original tenant continues to pay rent. Mr. De has not disputed, perhaps he cannot dispute, the fact of transfer by the original tenant to Kali Charan Raj Bangshi, the predecessor -in‑interest of the plaintiffs because of the entry in the record‑of- rights and because of the fact of possession of the disputed land situated between the houses of the parties. What he disputes is that if the original tenant continues to pay rent in spite of the transfer, then there is no abandonment. It is no doubt true the landlord proved realisation of rent and enhancement of rent from 1931 onward though the finding was that this realisation of rent namely, the deposit in previous rent suit was made by the tenant -defendant in Title Suit No. 76 of 1953 in the name of the original tenant and, according to the Courts below, payment of rent as marfatdar did not and could not constitute recognition but long before the year 1931 these tenants, the plaintiffs in Title Suit No. 62 of 1953 and defendant in Title Suit No. 76 of 1953 were in posses sion to the knowledge of the landlord which knowledge he cannot deny in view of the fact that the transferee's possession has been recorded in the finally published record‑of‑rights in the year 1917 and in fact, the landlord has not denied their knowledge. But the plaintiff in Title Suit No. 76 of 1953 has not been able to prove by producing the talab‑baki paper in spite of the fact that the learned pleader for the plaintiff in Title Suit No. 62 of 1953 made a grievance for non‑production of those papers showing payment of rent by the original tenant Rohini Kumar Roy during the period of over 30 years in order to facilitate the contention of Mr. De, that there cannot be any abandonment by bare transfer of the non‑transferable occupancy‑holding if the original tenant continues to pay rent of the holding. In the absence of any such evidence the irresistable conclusion is that there was a complete abandonment of the holding by the original tenant giving the landlord a right of re‑entry and to get khas possession after evicting an unauthorised transferee if the occupancy holding is not transferable without the consent of the landlord.

14. This right to the landlord has accrued soon after the transfer as he failed to prove the payment of rent by the original tenant since date of transfer. After the expiry of 12 years of such an abandonment, the landlord is not entitled to make the land khas on account of the unauthorised transfer and his right is barred by limitation. Having realised this position, the landlord, the plaintiff in Title Suit No. 76 of 1953 resorted to file a rent suit against the original tenant and obtained a decree, in the year 1947 and in execution of that decree, it is said, he has purchased the holding and therefore, is entitled to get khas possession of the same. If the so‑called unauthorised transferee has acquired a limited interest of tenant by adverse possession for over 12 years, is it fair on the part of the landlord to file suit against the original tenant and to put the tenancy of the original tenant into sale and purchase it and to claim khas possession on the basis of that purchase after evicting the transferee ? In the said rent suit and execution proceeding, these persons, the transferees who have acquired a limited interest of tenants by adverse possession, were not impleaded as parties. Their interest cannot be affected by the sale and the landlord, plaintiff in Title Suit No. 76 of 1953 is not entitled to get a decree for khas possession of the land constituting the tenancy of the defendants in Title Suit No. 62 of 1953 after their purchase of the tenancy of the original tenant which has long been abandoned or transferred and though the transfer is unauthorised it is binding on the transferor and the transferee. In support of this view reference may be made to the decision in the case of Probhabati Dassi v. Taibatunnessa Chowdhurani. On transfer of the non‑transferable occupancy holding by the original tenant long before the occupancy rights became transferable in law, the landlord becomes entitled to re enter the land at once. If the landlord does not take any steps to recover possession of the property and allows the transferee to remain in occupation of it for 12 years or more, the latter would acquire a limited interest of a tenant by adverse possession and the right of the landlord to recover khas possession of the land would be barred by limitations unless he can make out a case under V section 18 of the Indian Limitation Act and prove that he was kept out of his knowledge of his right to institute the suit by reason of any fraud committed by the transferee. It is inconceiv able that the only effect of acquisition of occupancy right by transferee would be that the landlord's right to sue him for khan possession would be barred but that it would be open to the landlord to proceed even then against the original tenant for recovery of rent of the holding. The law of limitation has not only destroyed the landlord's right to recover khas possession of the holding but it would create a corresponding right in the adverse possessor as well. This view is amply supported by the decision in the case of Probhabati Dassi v. Taibatunnessa (17 C W N 1088, 1092) and also in the case of Raja Gopal Lal Roy Bahadur, Ward of Court by its Manager v. Tajhat Wards Estate (82 C L J 102, 106) wherein the case reported in 17 C W N 1088 along with other case of Panchkari v. Maharaj Bahadur (19 C W N 136), were followed and relied on. In this view of the matter, it is not necessary for me to send the case back on remand for determination of the question whether the disputed occupancy holding was transferable by custom or' not in view of the assertion by the tenant plaintiff in Title Suit No. 62 of 1953 that the occupancy holding was transferable and in view of the entry in the record‑of‑rights Exhibit 3 where the fact of transfer by the original tenant Rohini Kumar Roy, predecessor‑in‑interest of the plaintiffs in Title Suit No. 62 of 1953 has been recorded under the landlord, the plaintiff in Title Suit No. 76 of 1953 on a jama of Rs. 10‑8 long after the transfer in the year 1898.

15. In the result, both the appeals are allowed with costs and the judgments and decree of the Courts below are set aside and the plaintiffs' Title Suit No. 62 of 1953 is decreed with costs in both the Courts below and Title Suit No. 76 of 1953 is dismissed with costs in both the Courts below. But there will be one set of hearing fee for both the appeals. Leave under clause 15 of the Letters Patent prayed for is refused. A. H. Appeals accepted.