Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Appeal from Appellate Decree No. 281 of 1961, decided on 4th June 1965.
‑"Rent‑receiver"‑Definition‑Non agricultural land leased out otherwise than in perpetuity‑Holder of such land does not become a "rent‑receiver".
‑Lease in perpetuity‑Can be created by express grant or by necessary presumption raised by terms of grant and by unambiguous and long possession.
Costs‑Lower appellate Court modifying decree of trial Court‑Costs awarded by trial Court‑Ordered to be modified proportionately.
Mozammal Huq for Appellant.
Ahmad Sobhan for Respondents.
This appeal raises two very interesting points and it arises out of the following circumstances:
Plaintiff instituted a suit for recovery of rent against defendants for the period from 1363 B. S. to Ashar, 1365 B. S. together with compensation thereon in respect of premises which were leased out to the predecessor of defendants for a period of thirty years at an‑ annual rental of Rs. 1,700. I may add that plaintiff had filed the said suit in his capacity as Mutawalli of the suit‑land. It was specifically recited in the lease‑deed that the premises were being leased out for raising an industrial concern. There is a further condition in the lease‑deed that the lessor would be entitled to re‑enter the premises so leased out unless the lease was renewed after a period of thirty years. It is thus patent that the said lease was limited to a specific period of time, namely, thirty years.
The defence, inter alia, is, that plaintiff is not entitled to recover rent from the defendants inasmuch as his interest, being that of a rent‑receiver, had vested in the Provincial Government under the provisions of the East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1951).
It may be mentioned here that in the year 1957 plaintiff had created a wakf of his interest in the suit‑land and had appointed himself as the first Mutawalli thereof. The contention of the defendants with regard to the creation of the aforesaid wakf is that it was not a valid wakf and, furthermore, that it was created purely as a device to evade the operation of the said East Bengal State Acquisition and Tenancy Act, 1950.
The suit was tried by a Subordinate Judge of Chittagong, who, on a full consideration of the materials before him, decreed the suit.
Against the judgment and decree passed by the learned Subordinate Judge, defendants preferred an appeal which was heard and disposed of by an Additional District Judge of Chittagong. Before the learned Additional District Judge two important points were raised. In the first place, it was urged that the lease was a lease in perpetuity and that the said lease therefore, constituted plaintiff as a "rent‑receiver" within the meaning of the said Act. It was submitted by the appellants (defendants) that if plaintiff was found to be a "rent‑receiver ", his interest in the suit‑land had vested in the Government by virtue of the notification, which had admittedly been issued under section 3 of the Act acquiring all rent‑receiving interests in the Province.
It was contended, on behalf of plaintiff‑respondent, that the lease created in the manner stated above did not amount to a lease in perpetuity and that, therefore, the plaintiff was not a "rent‑receiver" within the mischief of the East Bengal State Acquisition and Tenancy Act. Learned Additional District Judge, referring to the definition of "rent‑receiver" in subsection (23) of section 2 of the said Act, came to the conclusion that plaintiff was not a rent‑receiver, but a holder of khas land in respect of the suit land.
The next question, which was strenuously mooted before the learned Additional District Judge was, whether the plaintiff had created a valid wakf in respect of the suit‑land. He held that there was no reason to hold that the wakf that was created by plaintiff was not a genuine wakf. The Appellate Court below, consequently, dismissed the appeal, but modified the decree of the trial Court to this extent that the plaintiff's claim for rent for the period from 1363 B. S. to Kartick 1364 B. S. was disallowed inasmuch as it was held that prior to that period no wakf was created, in spite of the intention of the plaintiff to do so. Hence this appeal by defendant No. 1.
It has been contended before me that plaintiff is a rent‑receiver in respect of the‑suit‑land, and, if so, he has been divested of his title to the land, which has vested in the Provincial Government, under the provisions of the said East Bengal State Acquisition and Tenancy Act.
Subsection (23) of section 2 of the East Bengal State Acquisi tion and Tenancy Act, 1950, reads thus:
"rent‑receiver' means a proprietor or a tenure‑holder, and includes a raiyat, an under‑raiyat or a non‑agricultural tenant whose land has been let out and also the immediate landlord of a person who holds any land free of rent in consideration of some service to be rendered, but does not include a person in respect of such of his lands, as has been let out, together with any building standing thereon and necessary adjuncts thereto, otherwise than in perpetuity."
Analysing the aforesaid definition of "rent‑receiver", it would be Clear that if a proprietor or a tenure‑holder has a raiyat or an under‑raiyat under him, then the said proprietor or tenure‑holder becomes a rent‑receiver, and, with regard to non‑agricultural land which has been leased out otherwise than in perpetuity, the holder of the land does not become a rent‑receiver.
Admittedly the suit‑land is a non‑agricultural land and it is also admitted that the defendant‑appellants had obtained the lease of the suit‑land from plaintiff's predecessor in title. The only question to be examined is, whether the suit‑land had vested in the Government. If the aforesaid lease is not a lease in perpetuity, the plaintiff is not a "rent‑receiver" and the suit‑land has not vested in Government. It is evident from the terms of the lease, as stated above, that it is a lease for a fixed term and not a lease in perpetuity. A lease in perpetuity is unknown to English law. In this country a lease in perpetuity can be created by an express grant to that effect or by a necessary presumption raised by the terms of a grant and by an unambiguous and long possession. In this particular case there can be no manner of doubt that the lease was for a fixed period and not a lease in perpetuity within the meaning of the Transfer of Property Act. Plaintiff was not, therefore, a "rent‑receiver" in respect of the suit‑land.
Mr. Mozammel Huq has next argued that, by virtue of the provisions of section 7 of the East Bengal Non‑Agricultural Tenancy Act, 1949 (Act XXIII of 1949), the lease held by the defendant appellant has become a lease in perpetuity. He has drawn my attention to subsection (5) of the said section 7, the material portion whereof is quoted thus:
"7. Notwithstanding anything contained in any other law for the time being in force or in any contract‑‑
. . . . . . . . . . .
(5). if the landlord has allowed pucca structures to be erected on any non‑agricultural land held under a lease in writing for a period specified therein, whether such structures have been erected‑
(a) before the expiration of the said period, or
(b) . . . . . . . . . .
then‑
(i) the tenant holding the non‑agricultural land comprised in such tenancy shall not be ejected by his landlord from such land except on the ground that he has used such land in a manner ' which renders it unfit for use for any of the purposes specified in section 4; '
This argument is ingenious but wholly untenable. Mr. Mozammel Huq has shown that, in fact, the defendants, have raised permanent structures on the land within the meaning of section 7(5) of the East Bengal Non‑Agricultural Tenancy Act. That is so. But, by virtue of the aforesaid enactment, defendants could be evicted on only one ground, that is, on the ground that they have used the land in a manner which renders it unfit for use in respect of any of the purposes specified in 'section 4 of the said Act. The aforesaid provision confers immunity upon defendant from eviction on a limited ground. This does not convert the aforesaid lease into a lease in perpetuity. I, therefore, hold that the lease granted to the defendant, even when it is read along with the provisions of the Non‑Agricultural Tenancy Act, does not become a lease in perpetuity. Therefore, this contention of the learned Advocate for the appellant must be overruled.
Both the Courts below have concurrently held that plaintiff -respondent has validly created a wakf in respect of the suit‑land. I have no reason to disagree with them. Indeed, on the evidence as led by the plaintiff, it must be held that the aforesaid wake' is a valid wakf and Mr. Mozammel Huq has not been able to contest this position.
The appellant; therefore, loses on the two points raised before me. No other point was canvassed by the appellant. The position, therefore, is, that the defendant still continues to be lessee under plaintiff, whose title has not been extinguished by acquisition of all rent‑receiving interests in the Province by the Government under section 3 of the said East Bengal State Acquisition and Tenancy Act, 1950.
Mr. Mozammel Huq has, however, urged that, inasmuch as the decree passed in favour of the plaintiff has been modified by the Appellate Court below, there should be an order that the costs awarded against the defendant‑appellant by the trial Court should also be modified to that extent. I hold that this contention of Mr. Mozammel Huq is right.
The result, therefore, is, that this appeal is dismissed without any order as to costs of this appeal, with this modification that the plaintiff will get proportionate costs of the suit from defendant /appellant.
S. Q.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer