P L D (PLP)

In support of his contention Mr. Das has placed his reliance on the case of Darsan Singh and others v. Bhawani Koer (17 C W N 984). The relevant passage occurring at p. 987 is in the following terms: "The purchaser may elect to annul an under‑tenure not only by institution of a suit, or by giving a notice to vacate but may indicate it by other means." The learned Advocate also placed his reliance on the case of Raja Sashikanta Acharyya v. Raja Sarat Chandra Rai Chaudhry (34 C L J 415). In that case also the case of Darsan Singh v. Bhawani Doer was approvingly referred to by the learned Judges. Mr. Das also cited the case of Ramratan Kapali v. Aswini Kumar Dutta (I L R 37 Cal. 559). It was also held in that case that the law does not require any notice as a necessary preliminary to suit to avoid an under‑tenure, but the option of the purchaser may be exercised by the institution of a suit within the time approved by law. Where such a suit has been instituted, the tenure must be regarded annulled from the date of the commencement of the suit. Mr. Bhattacharjee appearing for the respondents submits that it is true that the touzi No. 1752 was sold for arrear of revenue and purchased by Asoke Gopta. But there is no evidence that he, in fact, annulled the estate of the Roy Chowdhuries of Baraghara estate who were the under‑tenure holders. He contests that Exh. B which is nothing but a printed notice to the effect that all under‑tenure under the touzi No. 1752 were annulled but there is total absence of evidence to the effect that the intention of annulment was at all brought to the notice of the under‑tenure holders. Mr. Bhattacharjee has placed his reliance on the case of Turner Morrison ck Co. v. Momo Mohan Chowdhry, (36 C W N 29 (F C)) Mr. Bhattacharjee has also placed his reliance on the case of Sahadora Mudiali v. Nabin Chand Boral (I L R 42 Cal. 639). It cannot be said that the purchaser of a superior touzi gets all it under‑tenures annulled automatically. He must exercise his option of annulment. It is not necessary for him so to do by bringing a suit. He may do so by institution of a suit or by serving a notice on the under‑tenure holders or by collecting rent from tenants who are in possession or by any other overt act which might indicate a clear intention of the purchaser to annul the under‑tenures. It, however, logically follows that the intention to annul the under‑tenure must be made known to the under‑tenure holders. If the learned Subordinate Judge has really said that a suit was necessary to perfect the annulment, he fell into an error of law. It is actually not clear what he meant by his observation in his judgment. The case of Turner Morrison which has been relied on by Mr. Bhattacharjee is indeed an authority for that proposition. The intention of annulment should be made known to the under‑tenure holders. The following observation of their Lordships of the Judicial Committee of the Privy Council made in the aforesaid case of Turner Morrison may be quoted below. "Unless and until the taluk is annulled it continues: the talukdar becomes the under‑tenant of the purchaser and the tenants holding under him are not affected by the change of proprietorship. There is no privity of contract between them and the purchaser, and the latter cannot either claim rent from them or eject them so long as he allows the taluk to continue. The purchaser could, no doubt, sue for possession of the holdings joining both the talukdar and the talukdar's tenant. The institution of such a suit would be an effective election to annul the taluk, and the joinder of the persons in actual possession would be in accordance with the ordinary procedure. But their Lordships are unable to see what cause of action the purchaser can have against the tenants of the talukdar as long as the taluk subsists. Their contract is with him and their liability is to him and not with or to his superior landlord." Their Lordships also proceeded to observe that "In the lower Court there does not appear to have been any suggestion that the respondent had intimated to the talukdar that his tenure was at an end. The talukdar was not joined as a party, and no issue was raised upon the point." It can, therefore, be rightly said that although, the institution of a suit was not necessary, a mere overt act was sufficient but the overt act indicating annulment, must be brought to the knowledge of the under tenure holder. The case of Sahadora reported in I L R 42 Cal. 638, to which reference has already been made is also, in support of the proposition that there should be a definite act bringing to the notice of the under‑tenure holder the intention of annulment by the purchaser. It was observed in that case: "The effect of a sale is not ipso facto to avoid under tenures; the purchaser has the option of avoiding them or keeping them intact. It is necessary therefore that the purchaser must in some unequivocal act indicate his intention to avoid under tenures if he desires to do so." Mr. Das also does not contest the proposition that the annulment should be brought to the knowledge of the under‑tenure holders. What he, however, contends is that this has been done. He submits that D. W.

7. Makhan Lal Chakraborty who describes himself as an employee of Asoke Gupta deposed to the effect that notice of annulment was served after the purchase of the touzi. Mr. Bhattacharjee also hastens to say that although this witness speaks of the service of notice he does not say that it was served on the under‑tenure holder Roy Chowdhry. Mr. Das, however, claims that the deposition to the effect notice was served in the locality should be considered sufficient. To that Mr. Bhattacharjee replies that the said employee he could not even give the number of the tenure on which the notice was served. It is not for me in second appeal to take into consideration this fact and to give a finding as to whether the annulment was brought to the knowledge of the Roy Chowdhuries. This deposition was not taken into consideration by any of the Courts below: On the contrary the only point that was considered by the learned Subordinate Judge was the institution of the rent suit and he omits to consider, as it is contended by Mr. Bhattacharjee that Roy Chaudhries were not made parties to the rent suit. Mr. Das, however, says that there were other materials in support of the finding that the annulment was made to the knowledge of the under‑tenure holders. He points out the correction of the record‑of‑rights by the State Acquisition depart ment and substitution of the name of Asoke Gupta in place of Baraghara estate and claims that such a proceeding could not have been taken without the knowledge of the Baraghora estate. But Mr. Das has failed to show from the record any direct evidence to that effect. He, however, claims that from the circumstances it can be said that the Roy Chowdhries were aware of the intention of annulment. The learned Subordinate Judge's conclusion that the encum brances were annulled within the knowledge of Baraghara estate was reached without considering the aspect of the question pointed out above, namely, as to whether the correction in the State Acquisition proceedings was made to the knowledge of the Roy Chowdhuries. It was also not considered that they were not parties to the rent suit. I am, therefore, of opinion, that the learned Subordinate Judge has not approached the evidence relating to knowledge correctly and this being a very material point in the case, the case should be sent back on remand for assessment of evidence as whether the annulment was made to the knowledge of the under‑tenure holders. Mr. Das appearing for the appellant also frankly concedes that the evidence relating to knowledge requires reassessment by a Court of fact. Mr. Bhattacharjee of course feels that the evidence is of such a thin nature, this could be decided by this Court. But I am of opinion that whether the factum of annulment was known to the Roy Chowdhuries was an issue of fact and must be determined by the last Court of fact. While developing his point that annulment was not subject to the institution of a suit, Mr. Das had drawn my attention to the following observation of the learned Judge. "The learned lawyer for the defendant No. I appellant has contended that the interest of the Baraghara estate in this land has also been annulled by Asoke Gupta after his auction-purchase at the Revenue sale, but the learned lawyer appearing on behalf of the plaintiff-respondents has very rightly contended that as this land was in khas possession of the Baraghara estate mere annulment of their encumbrances by Asoke Gupta will not do, inasmuch as Asoke Chandra Gupta has not brought any suit for khas possession of this land within twelve years from sixty days after the revenue sale." Mr. Das's contention was that no institution of a suit for possession was necessary. Mr. Bhattacharjee, however, contends that the learned Judge only means that the plaintiffs having required a right apart from annulment by adverse pos session, a suit was necessary. Mr. Bhattacharjee further contends that even if that was not meant by the learned Judge, he alternatively takes his stand on his right acquired by adverse possession. He claims that even if the defence version that annulment was made in 1941, is taken as true, he should be deemed to be in possession adversely with effect from that order and therefore, when he was ousted in 1955, he had already acquired title by adverse possession. Although his client purchased from the Roy Chowdhuries in 1953, he claims that he must be deemed to be in continuous possession from 1941 to 1955 as he is successor‑in‑interest of Roy Chowdhuries and in this respect Mr. Bhattacharjee has placed his reliance in the case of Askhoy Chandra Majumder Chowdhry and others v. Mohendra Narayan Majudmdar Chowdhry and another (P L R 6 Dacca 441) Mr. Das does not contest the proposition as propounded by Mr. Bhattacharjee but he contends that in view of the evidence of P. W. 2 to the effect that the defendants ousted them in 1952, there was no continuity of possession for 12 years. It ended in 1952. Therefore, there has been no right acquired by plaintiffs on account of adverse possession. It seems to me that the evidence in regard to adverse possession has not been assessed properly and Mr. Das submits that it could not be assessed His this point was not raised in that form before the first appellate Court. The point raised by Mr. Bhattacharjee is also undoubtedly dependent on a determination of an issue of find as to whether the dispossession took place in 1952 or in 1955. If Mr. Bhattacharjee's contention that the dispossession took place in 1955 is found to be correct, then apart from the question of annulment, the right acquired by adverse possession would be sufficient to resist the claim of the defendants. But the point as to when dispossession actually took place should be decided by a Court of fact. Therefore, I am of opinion that the first appellate Court must take into consideration the evidence adduced by the parties and reach a first conclusion as to whether the dispossession took place in 1955 or in 1952. If the dispossession was in 1955, then in respect of the western portion, of the plot Tao, 5239 the plaintiffs will have a right by virtue of adverse possession whereas the defendants will be mere trespassers and as such the plaintiffs will be entitled to a decree on that ground alone. In so far as the Suit No. 16 of 1953 is concerned, out of which the Second Appeal 60 of 1961 arises, the claim is with regard to the eastern portion of plot No. 5039. In that case Santo Gopal Roy Chowdhry and others have based their claims on the ground that Lal Mohan was a mere licensee in the eastern portion of plot No. 5239 and the defendants had no right also in respect of plot Nos. 2932 and 2933. That suit was contested by the defendants and their case was that Lal Mohan was a tenant in respect of the eastern portion of plot No. 5239 and transferred the same to the defendants on 23‑4‑1953. The trial Court found that Lal Mohan was a licensee regarding the eastern half of 5239 but‑so far as the other two plots are concerned the plaintiff is entitled to a decree in their favour. The trial Court decreed the suit in respect of 2932 and 2933 but dismissed it with regard to 5239. The appellate Court, however, reached conclusion that the plaintiffs had no right, title and interest in plots Nos. 2932 and 2933 and dismissed the suit as stated already. Mr. Bhattacharjee appearing on behalf of the plaintiffs -appellants submits that so far as the plot No. 5239 is concerned it is concluded by findings of fact but so far as the plots Nos. 2933 and 2932 are concerned he thinks that the learned Subordinate Judge's finding to respect of the said two plots are not satisfactory. And Mr. Das, however, submits that this second appeal is concluded by findings of fact. On a perusal of the judgment of the Court of appeal below it appears that the learned Subordinate Judge on a consideration of the evidence as a whole concluded that "If it is now found that he did not actually purchase any portion of the disputed lands from defendant No. 1, then only defendant No. 1 the true owner, can eject him and that the present plaintiffs, who have actually got no subsisting interest in the disputed land, cannot do so. "He, therefore, dismissed the suit as a whole. On a perusal of the judgment in regard to these plots I am of opinion that this appeal is concluded by the findings of fact. In the result the Appeal No. 367 of 1960 is allowed and the judgment and decree of the Court of appeal below are set aside and the case is remanded to the Court of appeal below for rehearing and disposal of the appeal in accordance with law in the light of the observation made in respect of the subject‑matter of Suit No. 245 of 1956. The Appeal No. 60 of 1961 which arises out of a Suit No. 16 of 1953 is dismissed. In the facts and circumstances of the case the parties in both these appeals are left to bear their own costs. K. B. A. Appeal accepted.