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Letters Patent Appeal No. 5 of 1960, decided on 23rd November 1962.
, S. 100‑‑Point needing investigation into facts and not raised in Courts below‑Cannot be allowed to be raised in second appal.
M. H. Khandkar with S. M. Mohsin Ali for Appellants.
Birendra Nath Chowdhury for Respondent.
This appeal under clause 15 of the Letters Patent is directed against the judgment and decree of a Single Judge of this Court (Mr. Justice Sikander Ali) dated 13‑6‑60 in S. A. No. 68 of 1959.
2. Points of law alleged to be involved in this case are : (1) whether there was valid abandonment of the under‑raiyati holding giving the right of re‑entry to the landlord under section 87 of the Old Bengal Tenancy Act and (2) whether in the alternative the plaintiff‑landlord is entitled to get a decree for khas possession, under section 48‑F of the Bengal Tenancy Act on the ground of transfer of the under‑raiyati without the consent of the landlord.
3. Short fact, relevant for the purpose of this appeal, are as follows:----‑One Parameswari Dasi a childless widow was the owner. in possession of the under‑raiyati holding situated in the village Anantapur. Soon after the death of her husband her house was looted by the defendant and she left the village and went to the house of her maternal uncle in a different village eight miles away from the disputed holding. It was in the year 1358 B. S. corresponding to 1952. The plaintiff, it is alleged, purchased the superior interest i.e., the raiyati interest over the holding from the raiyat in the year 1359 B. S. corresponding to 8‑4‑53 by Exh. 5. In the mean time, Parameswari sold .13 out of .14 of the land of the holding to the defendant on 23rd Magh 1362 B. S. corresponding to 6‑2‑56 by a registered kabala Exh. B. Before the sale the landlord‑plaintiff, is said to have entered into posses sion of the disputed holding by serving notice under section 87 of the Bengal Tenancy Act on 6‑7‑55 alleging that there was a complete abandonment within the meaning of section 87 of the Bengal Tenancy Act and he was subsequently dispossessed by the defendant on the basis of his purchase from Parameswari. On this ground of possession followed by dispossession the plaintiff filed a suit for declaration of title and for recovery of possession.
4. Trial Court decreed the suit holding that there was an abandonment within the meaning of section 87 of the Bengal Tenancy Act. On appeal the learned Subordinate Judge after consideration of the evidence on record held that there was no abandonment and the plaintiff had no right of re‑entry and dismissed the suit.
5. Against that judgment and decree of the lower appellate Court a second appeal was filed in the High Court. It was contended, on behalf of the plaintiff-appellant in the High Court, that the learned Subordinate Judge was absolutely wrong in hold ing that there was no abandonment, as he has not applied his mind nor has he properly appreciated the evidence on record. In the alternative it was also argued before the learned Single Judge that at any rate the transfer of the holding was unauthorised and on that ground also the plaintiff is entitled to get a decree for khas possession. The learned Single Judge observed at page 3 of his judgment as follows:----
"The learned Advocate, however, failed to lay his finger on any specific piece of oral or documentary evidence which the learned Subordinate Judge did not take into consideration and which, if it were taken into consideration by him, was likely to lead him to a conclusion different from that at which he has actually arrived. A perusal of the judgment, on the other hand, shows that every piece of material or relevant evidence, both oral or documentary has been actually discussed and carefully considered by the learned Subordinate Judge and the conclusion arrived at by him also appears to be fully borne out thereby."
6. As to the second point, the learned Single Judge held that this ground was never taken either in the pleading or in course of argument in any of the Courts below and as such the defen dants was not called upon nor he had any opportunity to meet the claim on the ground of transfer of the under‑raiyati without the consent of the landlords and that in the absence of such amendment in the plaint if the claim sought to be put forward now on the said alternative or additional ground were to be entertained at this state, the defendant may rightly complain of prejudice on the ground of denial of opportunity to meet the same on one plea or the other. Therefore, the learned Judge held that the appellant before him could not be heard to put forward this claim at that stage, although they might be free to agitate the same in a properly framed suit before a competent Court thereafter, if not otherwise barred. With this finding the learned Single Judge dismissed the suit. Hence this Letters Patent Appeal.
7. Mr. M. H. Khandkar, the learned Advocate for the appellant reiterated the self‑same points before us for our consi deration. We wonder how the learned Advocate could persuade the learned Single Judge to grant leave to appeal under clause 15 of the Letters Patent, when the learned Single Judge himself, as it appears from his judgment, is not in doubt as to the decision he has arrived at. Be that as it may, it is absolutely correct for the learned Single Judge to hold that the finding arrived at by the lower appellate Court on the question of abandonment is based on evidence. The trial Court at page II of the paper‑book (bottom) held that there was no satisfactory evidence to prove such offer from the side of Parameswari and refused on the side of the landlords to accept the rent except the oral evidence of the defendant and some of his witnesses who could not be relied upon, whereas, the learned Subordinate Judge at bottom of page 22 of the paper‑book held that Parameswari had many lands besides the suit land and that she paid rent for the other holdings regularly and it transpired further from the evidence on record that she tendered rent to plaintiffs through her maternal uncle Nanda but the plaintiffs did not accept it. On this finding the learned Subordinate Judge arrived at the conclusion that there was no abandonment. When this portion of the judgment the Court below was brought to the notice of the learned Advocate Mr. M. H. Khandkar, he could not sustain the argument that the finding arrived at by the learned Subordinate Judge and confirmed by the learned Single Judge is an illegal finding in any way and he fell back on his alternative argument on the basis of the provision of section 48‑F of the Bengal Tenancy Act, namely, that is an unauthorised transfer giving a right to get khas possession of the under‑raiyati from the possession of the transferee. Section 48‑F of the Act runs as follows:
"48‑F. The holding of an under‑raiyat shall descend in the same manner as other immovable property, but subject to the provisions of subsection (2) of section 48‑G shall not be transferable except with the consent of the landlord."
Although this section makes the under‑raiyati not transferable without the consent of the landlord it has been subjected to the provision of subsection (2) of section 48‑G. Section 48‑G of the Act runs as follows :‑‑‑--
"48‑G. (I) Every under‑raiyat who immediately before the commencement of the Bengal Tenancy (Amendment) Act, 1928, had by custom a right of occupancy in any land, shall have a right of occupancy in that land.
(2) Every under‑raiyat who has a right of occupancy in his holding shall have, as regards his immediate landlord, all the rights and liabilities of a raiyat with a right of occupancy, as set forth in
(i) Chapter V other than those conferred by sections 20, 21 and 22,
(ii) sections 65, 116 and 178, so far as possible, and
(iii) Chapter XIV.
and his holding, as against such landlord, shall be deemed to be the holding, of an occupancy‑raiyat for the purposes of the said sections or Chapters."
Subsection (4) of section 48‑G provides as follows :‑
(4) The provisions of sections 48‑A to 48‑E shall not apply to an under‑raiyat who has a right of occupancy in his holding, in so far as such provisions are inconsistent with this section."
What we find from the recital of the kabala is that this under raiyat is in existence for over twelve years.
8. From this kabala it further appears that out of .14 acres of the land of the under‑raiyati holding only .13 acres has been transferred to the defendant. It is contended by Mr. Khandkar relying on the decision of this Court in the case of Jamini Mosahar and others v. Md. Majibur Rahman ((1953) 5 D L R 22) that the sale of the under raiyati holding sole minus an insignificant area thereof is nothing but a camouflage and was a mere contrivance to avoid the land lord's right of re‑entry. It may be a camouflage or a contrivance to avoid landlord's right to re‑entry, but we are not concerned now with this at this stage in this suit. Plaintiff's suit was based on possession followed by dispossession on 15‑2‑56, that his case is that he re‑entered into the under‑raiyati holding under section 87 and was subsequently dispossessed whereas the cause of action under section 48‑F is forfeiture of the under‑raiyati on account of unauthorised transfer giving the date of sale on the 6th February 1956. The causes of landlord right to get khas possession found the action three dates of accrual are quite different and in the two causes of actions the defendant has got two separate defence. In the present suit the main defence of the defendant is, and which ought to be, want of abandonment. In the suit for recovery of khas possession on account of unauthorised transfer under section 48‑F his defence is manifold, namely, that the transfer was partial and not of an entire tenancy, or that the plaintiffs were aware of the same and acquiesced in or consented to it, as pointed out by the learned Single Judge or he may claim protection under section 48‑G of the Act because the provision of section 48‑F has been subjected to the provision of section 48‑G of the Act.
9. Mr. M. H. Khandkar has tried to support his contention relying on the decision of the Privy Council in the case of Babu Raja Mohan Manucha and others where the suit was one for mortgage where the plaintiff did not claim for money on the basis of the loan advanced on the mortgage bond. It was found that the mortgage was void and plaintiff was forced to fall back on his money claimed which he neither pleaded in his claim or in course of argument. As to whether such a claim can be allowed in a subsequent stage of the suit the Privy Council held:‑
"Where a suit was brought on a mortgage simply to enforce the security and no relief was claimed on the personal covenant, nor was any claim under section 65 of the Contract Act pleaded, the Chief Court on finding the mortgage to be void refused to allow the plaintiff advance a claim under section 65 which was not mentioned even in the memo randum of appeal. But the Judicial Committee entertained the claim and gave effect thereto in an ex parte appeal, on the ground that the respondent could not be prejudiced and the matter ought not to be left for a separate suit, although what defence the respondent could have desired to make did not appear from the record except two which the Judicial Committee repelled."
That was a case where the cause of action is the mortgage bond and the question was whether it was for security or for money claimed. Therefore, that was possible in that case ; but in the present case the causes of action are quite separate and distinct. One cannot be inter‑mingled with the other to the entire prejudice of the defendant.
10. Mr. M. H. Khandkar also tried to support his contention relying on the decision of the Supreme Court Appeal of India in the case of Sriniwas Ram Kumar v. Mohabir Prasad and others ((1952) S C A 116) where it was held that :‑---
"A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint, it is open to the Court to grant him relief on that basis. The rule, undoubtedly, is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had no opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there could be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes."
The facts of that case is that the plaintiff filed a suit for specific performance of contract of sale of the house in pursuance of which Rs. 30,000 was paid by the plaintiff to the second party defendant. The second party defendant sold the house to the first party defendant. The plaintiff filed the suit for specific performance of contract impleading both the first party and the second party defendant. The suit was contested by the defendants. The second party defendant contended that there was no agree ment for sale but as they are in need of money they took advance of Rs. 30,000 by way of loan. The first party defendant not only supported the case of the second party defen dant but also pleaded that they were bona fide purchaser for value without notice. of the contract, if any. Trial Court found that there was no valid contract. But the trial Court though dismissed the suit for specific performance of contract decreed the suit for Rs. 30,000 on the admission of the second party defendant. Question arose when the plaintiffs have not claimed any decree for money advanced by way of loan to the second party defendant, can the .Court pass a decree in favour of the plaintiffs. In that connection that Supreme Court held as quoted above. Here also the transaction is the basis of both the claim. But the question is whether it was in pursuance of the agreement of sale or it was in pursuance of loan transaction. There is nothing wrong and we do not understand how the principles laid down m the above two cases, namely, the case of Babu Raja Mohan Manucha and others v. Babu Manzoor Ahmed Khan and others (1) and the case of Sriniwas Ram Kumar v. Mohabir Prasad and others are applicable fn the present case. Further there is no admission on the part of the defendant which can justify the application of the principle enunciated by the Supreme Court of India in the present case. Defendant only admitted the purchase of a portion of the under raiyati holding and not the whole. The other elements, mentioned above, which are necessary to enable the plaintiffs landlords to get a decree for recovery of khas possession from the unauthorised transferees were never admitted anywhere, e.g., if the defendants can prove acquisition of an occupancy right by the custom plaintiffs have got no right of recovery of khas possession on account of the transfer without the consent of the landlord. It is true that the under‑raiyati holding compromises only one plot with an area of .14 acres of land out of which Parameswari sold 13 area of land leaving .1 acre outside the sale. This .1 acre of land is not demarcated from the land sold to enable Parameswari to hold it exclusively or to enable the defendant to hold 1.13 acres of land exclusively leaving aside the .1 acre of land to be possessed by Parameswari on a proportionate rent of 1.9 pies. It may be a camouflage or a contrivance to deprive the landlord of his right of re‑entry. But without proper investigation no body can definitely say whether the holding is a transferable hold ing without the consent of the landlord or not without investigation ft cannot be said that the transfer has given a right to the landlord to recovery to khas possession of entire holding. We, think the learned Single Judge rightly disallowed the point to be raised for the first time in second appeal which needs investigation not only into facts but also the compliance with the provision of section 48‑G of the Bengal Tenancy Act.
The result, therefore, is this appeal is dismissed with cost, hearing fee being assessed at 5 Gold Mohurs.
I agree with my Lord, the Chief Justice.
S. B./K. B. A. Appeal dismissed.
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