Gopiram Ramchandra Firm vs Nitai Lal Dutt and Others

In 1901 the Raja of Jheria granted a permanent lease of the underground rights in coal in mauza Gareria to Babu Moheshwar Rai. A condition of the lease was that for the surface land which might be required for carrying on mining work, the lessees should pay a rent at the rate of Rs. 2 annually for land which had been uncultivated and Rs. 5 for paddy land, and that in addition to this they should pay compensation to the tenant if the land required should be in occupation of a tenant.

In 1907 a survey was made at the instance of the Raja for determination of the area of surface land for which rent was payable, at which the lessees were assessed for a small area of land acquired from the holding of Koka Mahto. During the ensuing years, the lessees by private contract acquired possession of the whole of Koka Mahto''s holding of which the land was utilised for head-works of the colliery.

In 1918 the lessees granted a sub-lease to Fulohand Tioumji of the area with which we are concerned. In 1930 the receiver of the Jheria estate instituted a suit for arrears of rent against Koka Mahto who bad long ceased to have any concern with his former holding. A decree was obtained, in execution of which the holding was brought to sale when it was purchased by Nitai Lal Dutt. The purchaser then instituted a suit for ejectmend of the sub-lessees of the mining rights from the land which had formed the holding of Koka Mahto. The suit was decreed by the Munsif, but an order was made that execution of the decree should be delayed for one year in order to allow the sublessees to acquire the plaintiff''s interest u/s 50, Chota Nagpur Tenancy Act. The Munsif''s decision was reversed on appeal by the Sub-ordinate Judge, who found that Koka Mahto had not been in possession of any part of this area within twelve years of the rent suit and that his title had therefore been lost and had vested in the defendant sub-lessees. The decision of the Subordinate Judge was reversed and the plaintiff''s suit was decreed in second appeal in the High Court. The learned Judge of this Court found that no question arose of the defendants being in possession adversely to the landlord, and that the defendants as sub-lessees had no right to enforce the covenants or the head lease, so that they could not claim that the landlord had delegated to them the right to buy out tenants who might be in occupation of land required for surface working.

He further held that as the transfer of a raiyat''s interest was expressly prohibited by Section 46, Chota Nagpur Tenancy Act, and the procedure prescribed by Section 50 had not been followed, the defendants had no title and they were liable to ejectment. The learned Judge found himself compelled to make this order; but he remarked that it was very unfortunate, because it was clear that the action of the defendants had been bona fide in the exercise of rights of purchasing the surface interest for no other purpose than to work the mine or the mineral rights which were in the sub-lessees.

Mr. S.N. Bose on behalf of the defendant-appellants suggests that the defendants acquired their surface rights with the consent of the landlord and that the land, lord should therefore be held to be estopped from treating their transferor as his tenant; but it is not possible to treat this transfer of interest to the sub-lessees as if it were a surrender to the landlord. The sub-lessees although when they took their sub-lease they incurred liability to pay at certain specified rates for land required for surface working, did not acquire from the landlord any right to take a transfer from a tenant without the landlord''s consent. The provisions of Section 46, Chota Nagpur Tenancy Act, prohibit transfers such as were made in the present case; and in order to obtain immediately a legal title the sub-lessees would have had to approach the landlord who would take the appropriate action u/s 50, Chota Nagpur Tenancy Act. It appears to be clear therefore that any title claimed by the sub-lessees must be based not on the sale of occupancy right by the tenant, but on the possession which they enjoyed after they had bought the tenant out. The learned Subordinate Judge has found as a fact that Koka Mahto was not in possession of the disputed land within 12 years of the suit; that his title to the disputed land was lost and that the title had vested in defendants, 2 and 3 by reason of adverse possession.

So far as Koka Mahto''s title is concerned, this is a finding of fact which is binding on us in second appeal; but Mr. S.N. Bose on behalf of the appellants argues that the possession of the appellants must be treated as adverse not only to Koka Mahto but also to the landlord.

As Mr. B.C. De has pointed out, it would not be sufficient to show that the defendants had established by adverse possession a title against Koka Mahto, because that might be treated as an incumbrance which could be annulled after a rent sale Bhusan Chandra Ghose v. Srikanta Banarji A.I.R.1918 Cal 950. But in this case it appears that the possession of defendants 2 and 3, whether having aoquired by illegal transfer from Koka Mahto they are to be regarded as trespassers, or whether they are to be regarded as having acquired from Koka Mahto in accordance with the right delegated by the original mining lease, must be regarded as possession adverse to the land, lord, so that the defendants holding possession were prescribing for the title which they claimed against the landlord, which was that of tenants under the mining lease. The possession was open and public to the last degree, because in place of growing crops they substituted the head, works of a colliery. Where one raiyat transfers his land to another to cultivate, it may be well said that the landlord has no notice of any change in the circumstances of the tenancy until his attention is actually drawn to the transfer, because he is not to know whether the person whom his agents may see cultivating the field is a servant of his raiyat or is working for the raiyat.

But in the present base the whole manner of the use of the land was against the provisions of Section 21, Chota Nagpur Tenanoy Act, that is to say, the land was being openly used in a manner which rendered it unfit for the purpose of the original tenancy; it was being used by the persons who were working the coal mine in the village, and it was manifestly in their possession. The Baja might possibly if he had moved in time have ejected these persons from some part of this land as not being required for the purposes of the colliery or as having been acquired without his express consent; and he might if be had moved in time have recovered the salami which was payable under the terms of the lease. He did not move in time: he allowed the time to pass during which he could institute a suit for ejectment of these sub-lessees; and a suit was then instituted against the former raiyat of the long abandoned holding; but when the sub-lessees acquired by lapse of time their right to hold the land as against the Baja, the holding of Koka Mahto had ceased to exist. The liability of the sublessees to pay rent for this land is deter mined, not by the rent which Koka Mahto formerly paid, but by the conditions of the mining lease; and the title which has been perfected by adverse possession is the title which they claim of tenants of the surface land under the terms of the lease. When therefore the Baja put up for sale the holding of Koka Mahto in execution of the decree for arrears of rent obtained against Koka Mahto, he put up for sale a holding which no longer existed and the plaintiff acquired nothing by his purchase.

We consider therefore that the judgment and decree of the learned Judge of this Court must be set aside. The appeal must be allowed and the decree of the Subordinate Judge restored.

The appellants are entitled to their costs throughout.