High Court · 2012

2. The respondent Nos.1 to 6 in this appeal instituted the aforesaid suit a s plaintiffs against the present appellants as the principal defendant Nos.1 to 4 praying for a decree declaring the right of the plaintiff No.1 as monthly tena nt, in respect of 2nd schedule land, which is part of the 1st schedule land; for declaration of the plaintiff Nos.2, 3 and 4’s right as landholders to the exten t of 71.02% share in the 2nd schedule land, i.e. 1 powa 4 jasti 5 pan and 5 gand as by virtue of the purchase from the heirs of the original owners vide Exts.-8 to 12 sale deeds; for recovery of khas possession in respect of the 2nd schedule land by the plaintiff No.1 in respect of her tenancy right and by the plaintiff Nos.2, 3 and 4 in respect of the right of landholders by evicting the principal defendants therefrom and also for injunction. It has been contended inter alia that initially the forefathers of the plaintiffs were the tenants under the erst while jamindars, for which the tenancy agreement dated 02.12.1913 (Ext.-1) was e xecuted initially for a period of 5(five) years, which was extended by the subse quent agreement dated 21.03.1929 (Ext.-2) and thereafter by another lease agreem ent dated 25.02.1948 (Ext.-3) such lease was extended in favour of Banwarilal Bo xi, who is the husband of the plaintiff No.1. It is also the case of the plainti ffs that after the death of her husband, the plaintiff No.1 stepped into shoes o f her husband and became the tenant in respect of the Schedule-1 land. It has al so been pleaded in the plaint that the plaintiff Nos.2, 3 and 4 thereafter vide registered deeds of sale dated 08.07.1980 (Ext.-8), 30.06.1980 (Ext.-9), 11.08.1 986 (Ext.-10), 07.01.1987 (Ext.-11) and 21.01.1983 (Ext.-12) purchased a plot of land measuring 1 powa 4 jasti 5 pan 5 gandas out of the 1st schedule land and a s such acquired the right of the landlords over the said land. It has also been pleaded that in respect of the remaining land in Schedule-1 i.e. 4 jasti 7 pan, the proforma defendant Nos.5 and 6 continued to be the owner, they being the hei rs of the original owners. The further case of the plaintiffs is that the plaint iff Nos.2 to 4 and the proforma defendant Nos.5 and 6 are possessing the Schedul e-1 land in their respective shares and the plaintiff No.1 is tenant in respect of the entire land by virtue of the aforesaid lease deeds being Exts.-1 to 3. Ac cording to the plaintiffs, they had to institute the suit as the defendants on 3 0.11.1986 forcibly trespass into the 2nd schedule land and placed some readymade split bamboo bridges and blocked the drain as existing over the 2nd schedule la nd. While the defendant Nos.1 to 4 have contested the suit by filing the joi 3. nt written statement, the proforma defendants did not contest the suit. In the w ritten statement filed by the defendant Nos.1 to 4 it has been contended that th eir forefathers were the tenants under the erstwhile landlord by virtue of tenan cy created vide Ext.-A dated 07.06.1941 in respect of Schedule-1 land and therea fter the khatians being Exts.-C, D and H, all dated 16.12.1968, were issued in t he names of Roymohan Banik and Nani Gopal Banik, the predecessors-in-interest of the proforma defendants. It is also the pleaded case of the defendants that the y continued to be the tenants and they acquired the right of occupancy over the Schedule-1 land.

4. The Trial Court on the basis of the pleadings of the parties, framed the following issues for determination:- (i) (ii) Is the suit of the plaintiff maintainable? Is the suit of the plaintiffs barred by limitation and bad for waiver, e stoppel and acquiescence? (iii) (iv) (v) (vi) (vii) (viii) Is the suit of the plaintiffs bad for defect of parties? Have the plaintiffs’ right, title and interest in the suit land? Is there any cause of action for instituting the above suit? Is the suit land has been identified properly? Has the suit of the plaintiffs been properly valued? To what reliefs the plaintiffs are entitled?

5. The Trial Court upon appreciation of the evidences on record and also he aring the learned counsel for the parties decreed the suit of the plaintiffs by holding that the plaintiff No.1 is the tenant in respect of Schedule-1 land, by virtue of Exts.-1, 2 and 3 lease deeds and the plaintiff Nos.2, 3 and 4 have acq uired the landlord’s right in respect of the land purchased by them being 1 powa 4 jasti 5 pan 5 gandas, which is part of the Schedule-1 land, on the basis of t he registered deeds of sale being Exts.-8 to 12 executed by the heirs of the ori ginal owners.

6. Being aggrieved the principal defendants filed Title Appeal No.36/1998, which has also been dismissed by the First Appellate Court by upholding the judg ment and decree passed by the Trial Court. Hence the present appeal. This appeal was admitted for hearing on 09.02.2001 on the following subs

7. tantial questions of law. (cid:28)(i) 1, 2 and 3 in violation of Section 107 of the Transfer of Property Act? (ii) Whether the learned Courts below were justified in decreeing the suit of the plaintiffs in total disregard to the documents, namely, Exts.-C and D, issu Whether the learned Courts below were justified in relying on the Exts.- ed on 16.12.1968 in respect of Dag Nos.5072, 5073, 5074 and 5069? (cid:29)

8. I have heard Mr. B.R. Dey, learned Sr. counsel for the appellants/defend ants and Mr. G.N. Sahewalla, learned Sr. counsel for the respondents/plaintiffs. The proforma respondents have not entered appearance despite service of notice.

9. Mr. Dey, learned Sr. counsel referring to Exts.-1, 2 and 3 and also the provisions of Section 107 of the Transfer of Property Act submits that it is evi dent from the said exhibits that no lease has been created by the lessor and in fact those documents were executed by the lessee and by such documents no lease can be created as required under Section 107 of the Transfer of Property Act. Th e learned Sr. counsel, therefore, submits that the Courts below ought not to hav e decreed the plaintiff No.1’s tenancy right on the basis of the Exts.-1, 2 and 3.

10. Mr. Dey relating to the second substantial question of law submits that since the khatians being Exts.-C, D and H were issued in the names of the predec essors-in-interest of the present defendants/ appellants, they continued to be t he occupancy tenant having heritable and transferable right, even if the ownersh ip of the land is changed from the original owner to the plaintiff Nos.2 to 4. A ccording to the learned Sr. counsel, the Courts below, therefore, ought not to h ave passed any order directing eviction of the defendants from the land in quest ion.

11. Mr. Sahewalla, learned Sr. counsel appearing for the respondents/plainti ffs, on the other hand, supporting the judgments and decrees passed by the Court s below submits that at the relevant point of time the lease deeds are executed by the lessee informing the lessor i.e. the jamindars that the lessee is taking the property on lease and hence it cannot be said that by virtue of Exts.-1, 2 a nd 3 lease deeds the predecessors-in-interest of plaintiff No.1 and thereafter t he plaintiff No.1 did not acquire the tenancy right as claimed in the plaint.

12. It has also been submitted by Mr. Sahewalla that though the defendants h ave claimed that the land in respect of which Exts.-C, D and H khatians were iss ued is the land described in Schedule-1 to the plaint, the defendants could not, however, prove the same by adducing any cogent evidence. It has also been submi tted that the finding of fact recorded by both the Courts below that both the la nds are different, cannot be disturbed by the Second Appellate Court in the abse nce of any perversity in recording such finding. The learned Sr. counsel further submits that the plaintiff Nos.2 to 4 by proving the sale deeds being Exts.-8 t o 12 could prove that they acquired the landholder’s right in respect of 1 powa 4 jasti 5 pan 5 gandas of land, which is part of the Schedule-1 land, from the o riginal owner. Mr. Sahewalla, therefore, submits that the appeal preferred by th e defendants deserves to be dismissed.

13. I have considered the submissions of the learned counsel for the parties and also perused the judgments and decrees passed by both the Courts below apar t from the documents exhibited, more particularly, Exts.-1, 2, 3, 8 to 12, A, C, D and H to which the learned counsel for the parties have referred to during th e course of their arguments.

14. The plaintiff No.1 claims the right of tenancy by virtue of Exts.-1, 2 a nd 3 deeds dated 02.12.1913, 21.03.1929 and 25.02.1948. It is evident from the r ecital of Ext.-1 deed that the same is not the first deed executed, as it is men tioned therein that the said deed has been executed to extend the period of leas e. All these three deeds being Exts.-1, 2 and 3, are executed by the lessee and not by the lessor. The plaintiffs for the reasons best known to them have not pr oduced the original lease deed, which was executed prior to execution of the Ext .-1 deed. Section 107 of the Transfer of Property Act provides how the lease of im 15. movable property from year to year, or for any term exceeding one year, or reser ving a yearly rent, can be made. It provides that such lease can be made by a re gistered instrument. A property can be leased out only by the lessor. The lessee by executing a document cannot create any right over a property belonging to so me other persons, namely, the lessor. In the instant case, as noticed above, Ext s.-1, 2 and 3 are not executed by the lessor but by the lessee and as such the p laintiff No.1 who claims to have stepped into the shoes of her husband, in whose favour according to the plaintiffs the lease was created vide Ext-3 dated 25.02 .1948, cannot claim that she has the tenancy right over the land in question. Bo th the Courts below did not notice the said aspect of the matter. Hence the decr ee passed by the Courts below declaring the plaintiff No.1’s tenancy right in re spect of the suit property cannot be sustained and therefore, is set aside.

16. This leads to the consideration of the second substantial question of la w. The plaintiffs could prove the transfer of the landholder’s right in favour o f the plaintiff Nos.2 to 4 by virtue of the registered deeds of sale being Exts. -8 to 12. The defendants claim that they are the occupancy tenant in respect of the Schedule-1 land, by virtue of the transfer of the lease hold right in favour of their predecessors-in-interest vide Ext.-A deed dated 07.06.1941 and in resp ect of which the khatians being Exts.-C, D and H were subsequently issued in the year 1968. No evidence, however, could be laid by the defendants to demonstrate that the land mentioned in Ext.-A as well as Exts.-C, D and H is the same land as described in Schedule-1 to the plaint. Both the courts below have recorded th e concurrent finding of fact that the land in Exts.-A, C, D and H is not the lan d described in Schedule-1 to the plaint. Such concurrent finding of fact cannot be disturbed by the Second Appellate Court, no perversity in recording such find ing having been demonstrated. In view of the aforesaid discussion, both the Courts below have rightly 17. decreed the suit of the plaintiff Nos.2 to 4 declaring landlholder’s right in re spect of the part of the Schedule-1 land i.e. 1 powa 4 jasti 5 pan 5 gandas of l and. The decree for recovery of khas possession in respect of the said land has also rightly been passed. Hence the judgments and decrees passed by the Courts b elow in that regard is affirmed. The judgments and decrees passed by the Courts below declaring the plaintiff No.1’s tenancy right over the Schedule-1 land apar t from the decree passed for recovery of khas possession in respect of the land other than the land measuring 1 powa 4 jasti 5 pan and 5 gandas is set aside.

18. The appeal is partly allowed, as indicated above. No costs.

19. he Courts below. The Registry is directed to draw a decree and sent down the records to t