Bhairodayal Sahu and Others vs Jageshwar Sahu and Others

Rowland, J.—This appeal is by the plaintiffs in a suit to recover possession of some bakasht lands in village Agra, Police Station Tamar, District Ranchi. The history of the land is that the owners, defendants Nos. 3 to 6, have given the plaintiffs a zarpeshgi lease or mortgage with possession of their sixteen annas interest in this and other villages for a consideration of Rs. 24,000 by a registered deed dated September 5, 1930. The previous history of the land as ascertained by the Courts below from the entries in the Record of Rights and the admitted facts is that this was bakasht land of the landlords and had been granted by them to Rajib Rai who had served them faithfully as a Dewan. On the death of Rajib Rai, the tenure passed to his brother Digambar Rai who hypothecated the land in suit by a patta dated December 6, 1927, in the name of defendant No. 1. Thereafter the revisional Record of Rights began to be prepared and at the khanapuri stage Digambar was alive and was entered as a tenure-holder with defendants Nos. 1 and 2 as zarpeshgidars under him. While attestation was pending, Digambar died and the landlords resumed his tenure for lack of heirs. There was a dispute regarding the lands now in suit. They were entered as bakasht lands but the possession of defendants Nos. 1 and 2 was recorded. The Record of Rights was finally published on July 21, 1930. Then comes the zarpeshgi in favour of the plaintiffs on September 5, 1930, and in 1933, there was some dispute regarding possession in Criminal Courts. The finding of the Criminal Courts was that defendants Nos. 1 and 2 were in possession. The plaintiffs in their pleading ignored Rajib, Digambar and Digambar''s transfer to defendants Nos. 1 and 2 and pleaded that they had obtained actual possession of the disputed land from which they were dispossessed in 1933 after the criminal proceedings. This and the entry in the Record of Rights are propounded, as the cause of action for the suit.

The Munsif held on the basis of the settlement records that the tenure of Rajib and Digambar had been resumed on the death of the latter but that defendants Nos. 1 and 2 had continued in possession. On that finding it is argued that the suit ought clearly to have been decreed having regard to Section 14, Chota Nagpur Tenancy Act, which describes the consequences of the resumption of a resumable tenure. All rights or interests created without the consent or permission of the grantors by the grantee on the tenure shall be deemed to be annulled subject to exceptions with which we are not concerned. In appeal the Judicial Commissioner appears to have been inclined to think that the defendants had no title to continue in possession of the land after the death of Digambar, the tends having been resumed and enumbrances annulled u/s 14. But he did not come to a finding n this question being of opinion that it did not arise in the present suit as the landlord was not suing the defendants and was not a party to this suit. Here the learned Judicial Commissioner fell into an error of record. It was true that the landlords were not plaintiffs, but they had been impleaded as defendants Nos. 3 to 6 and the suit was properly constituted. Even if they had not been impleaded, the plaintiffs as, the persons to whom they had transferred the right to present possession could equally well enforce that right by a suit just as much as the landlords themselves could enforce it. Therefore, if the tenancy was resumed, the plaintiffs had a right to re-enter on the disputed land and the contesting defendants had no title to resist them.

Mr. Mukharji for the respondents was unable to urge that there was any possible defence on the merits, but he said that the suit had rightly been dismissed because it was based on a cause of action which the plaintiffs have failed to establish, namely dispossession on a specified date and that to allow the plaintiffs to succeed in this suit would be letting them set up a new case which the defendants were not in the Courts below called upon to meet. The answer is that defendants Nos. 3 to 6 are the admitted landlords having a right and title to the possession of every dhur of land within their estate unless and until some one can show a title to defeat them and the plaintiff stand in the shoes of defendants Nos. 3 to 6. Therefore, it was for the defendants to show a title to the property in suit, and it is not until the defendants have set up a title that the occasion arises for the plaintiffs to rebut it. It would certainly not be in the interests of justice to throw out the suit of the plaintiffs on such a technical ground the parties being residents of a rather out of the way portion of a backward district, where the Courts would ordinarily use their discretion liberally in construing the pleadings and, where necessary, allowing amendments. Order VI, Rule 17, CPC expressly contemplates allowing all necessary amendments in order to determine the real questions in controversy between the parties. The learned Judicial Commissioner has expressly abstained from corning to a finding whether the tenure of Digambar has been resumed or not and whether the defendants have any title after his death. The appeal must be remanded under Order XLI, Rule 25, for a finding on these two questions and the record should be returned to this Court as soon as possible with the necessary finding.