Find a Lawyer

Second Appeal No. 540 of 1959, decided on 15th August 1961.

S. 96 & O. XLI, r. 22 ‑ No cross‑appeal by respondent against trial Court's adverse findings against him‑Appellate Court justified in drawing Inference that respondent had accepted facts found by trial Court.

S. 107‑Lease Holding over‑Verbal lease for more than a year accompanied by delivery of possession‑Tenant continuing in possession and landlord accepting rent after first year‑Tenancy by holding over.

Alaudin Ahmad v. Aziz Ahmad and others A I R 1934 Pat. 369 ref.

M. A. Rouf for Appellants.

Asaduzzaman Khan and Abdul Wadud Mia for Respondents.

This appeal by the defendants arises out of a suit instituted by the plaintiff for declaration of her alleged tenancy right and confirmation of possession.

2. The subject‑matter of the dispute is a tank of which, according to the plaintiff, she took settlement from the landlords who had their kutchery on the attached plot and used the same, I.e., the tank, for bathing and other incidental purposes. It was alleged that the defendants were recently threatening the plaintiff with dispossession. The contesting defendants denied the plaintiff's story of landlords' khas possession as well as her tenancy settlement from them and pleaded their own right by adverse possession. They also set up a plea of settlement taken from Government following acquisition of the landlords' interest under the East Bengal State Acquisition and Tenancy Act.

3. There is no dispute regarding the landlords title. Controversy centred mainly round the question of possession and regarding this, both the Courts below have found as fact that the defence claim of possession is unfounded, that the landlords were in possession till they settled the disputed tank along with the adjoining plot, on which the landlords' kutchery stood, with the plaintiff and that since then the letter has been in possession. The learned Munsif, however, held that the collection papers were fabricated and ante‑dated and that there was no evidence that the tenancy was for agricultural or horticultural purpose and, accordingly, concluded that the plaintiff did not acquire occupancy raiyati right in the disputed tank, In this view of the matter, he dismissed the suit. On appeal, the learned Subordinate Judge has affirmed the trial Court's finding regarding the settlement relied upon by the plaintiff and, accordingly, reversed its decision holding that when the alleged settlement is made out, the right accruing there under cannot be affected even if the collection papers were taken to have been manufactured and ante‑dated for the purpose of supporting the fact of settlement.

4. The first point taken in impeachment of the judgment appealed from is that the learned Subordinate Judge is wrong in construing the absence of a cross‑appeal by the defendants against some of the trial Court's adverse findings against them as an admission on their part of the facts found and making his decision on that basis. This objection relates to the observations made by the learned Subordinate Judge to the effect that the settlement was admitted inasmuch as there was cross‑appeal against the finding of the learned Munsif that the tank was ac tually settled by the landlords with the plaintiff. What the learned Subordinate Judge obviously means is that non‑filing of the cross appeal implies that the fact of settlement as found by the trial Court was accepted of rather unchallenged and to this, I fail to see how any exception can be taken. What is, however, much more important is that the learned Subordinate Judge has not based his decision solely on this but has, on an examination of the evidence on the record, found independently thereof that the plaintiff took her alleged settlement and has been in actual possession on that basis. So the aforesaid contention has no force or substance.

5. The next point taken by the learned Advocate for the appellants is that the learned lower appellate Court has not adverted to or considered the collection papers which were found by the learned Munsif as having been fabricated and ante‑dated. When the settlement is found established, even independently of the collection papers, that cannot obviously be affected even if the collection papers produced to support the settlement were taken to have been manufactured and ante‑dated. As the learned Subordinate Judge has rightly observed: --‑

"The case of adverse possession as placed by the defendants has been disbelieved by the learned lower Court against which there has been no cross appeal. So, the only position which remains now is this that the plaintiff was in possession. That being the position, the plaintiff cannot be divested of the title and possession simply on a surmise that her rent receipts and talab bakies are not genuine, as non‑payment of rent does not extinguish title."

Thus the view taken by the learned Subordinate Judge appears to be perfectly sound so that the aforesaid contention challenging its propriety or validity has no merit.

6. The third and the last contention urged on behalf of the appellants is that, in the absence of a bilateral registered deed under section 107 of the Transfer of Property Act, the plaintiff acquired no title and is, therefore, not entitled to evict the defendants The cue for this is obviously taken from the view expressed by the learned Munsif that there is no evidence on the record to warrant any finding that C. S. plot No. 568 i.e., the tank was meant for agricultural or horticultural purpose. It is interesting to note that, the learned Munsif digressed into this discussion on the basis of an argument advanced by the learned defence lawyer at the conclusion of the trial. I fail to see bow this contention could at all be put forward when the plaintiff's case was one of settlement not of the tank alone but also of the adjoining plot whereon previously the landlords kutchery stood as one tenancy and the defendants did not any where within the four corners of their written statement plead or suggest that the tenancy was created not for agricultural or horticultural purpose but for some other purpose. Thus the defence did not make any such case and no issue, too, was raised in this behalf. That being so, there was really no occasion at all for the plaintiff to adduce any evidence thereon. So the learned Munsif's discussion in this behalf was rather uncalled for and the view taken by him that there is no evidence on record to warrant any finding that the disputed plot was meant for agricultural or horticultural purpose should not be taken to mean anything more than a statement of the factual position arising cut of the defence pleadings, i.e., that it is not the defence case that the tenancy was created for any purpose other than agricultural or horticultural purpose. It is, therefore, not open to the defendants, in view of their pleading, to contend that the tenancy is not a raiyati governed by the Bengal Tenancy Act but a lease coming within the purview of the Transfer of Property Act.

7. Again if it were assumed that the lease was one governed by the Transfer of Property Act, the plaintiff, in my opinion, is still entitled to a decree. A verbal lease for more than one year accompanied by delivery of possession is valid for the first year and if the tenant continues in possession even after the first year and the landlord accepts rent from him, he will be regarded as a tenant by holding over. In this connection reference may be made to the case of Alauddin Ahmad v. Aziz Ahmad and others (A I R 1934 Pat. 369). Hence in this view of the matter, too, the plaintiff must be held to have her tenancy right by holding over and is, as such, entitled to get her right declared and also have her possession confirmed.

8. In the result, the appeal is dismissed with costs and the judgment and decree of the learned lower appellate Court are affirmed.

R. B. A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.