Jiban Chandra Sarma vs Sukram Kalita and Another

This is a Plaintiff''s second appeal, arising out of a suit for declaration that the Plaintiff is the owner of certain land and for recovery of possession of the same.

The Plaintiff is the owner of 12 B. 1K. 18 lechas of land shown in the schedule ''Ka'' attached to the plaint. The 2nd Defendant was a tenant of the Plaintiff In respect of the entire land. The 2nd Defendant sold 8 B lechers out of this land to the 1st Defendant by a sale-deed dated 19th January, 1953. The Plaintiff brought the present suit on the 9th May, 1956, the allegation in the plaint was that the Plaintiff had no knowledge of the sale-deed, inasmuch as the rent was all along paid for six years by the 2nd Defendant and he was thus kept out of the knowledge of the sale-deed. Both the courts below dismissed the suit on the ground of limitation. The finding of the Courts below is that the suit is barred by Section 68 of the Assam (Temporarily-Settled Districts) Tenancy Act, 1935, hereinafter referred to as the Act. Section 63 of the Act reads as follows:

If any holding or part of a holding be transferred in contravention of the provisions of this Act, such transfer shall be voidable at the option of the landlord and the offending tenant''s entire interests in the holding shall be liable to be forfeited; and the landlord may within 3 years of the transfer bring a sort for recovery of possession of the entire interests of such tenant in the holding and shall be entitled to a decree for ejectment of such tenant or his transferee and any person claiming under either of them.

Provided that when the Court is satisfied that the transfer was made in good faith, the Court may, in lieu of ejectmenl, grant such other relief as may with due regard to the landlord''s interests to it seem suitable.

Mr. Lahiri''s contention is that Section 63 of the Act does not prescribe any period of limitation, and as it does not provide for any special period of limitation, Section 29 of the Limitation Act is not attracted to this case and the suit will be governed by a general provision of the Limitation Act and that the suit being one for possession, Article 142 or Article 144 of the Limitation Act will be attracted to the present case. Admittedly the suit was brought beyond three years from the date of the sale-deed and if Section 63 of the Act applies to the present suit, then the suit will be barred by time. We do not think that there is any substance in this contention The language of Section 68 of the Act is very plain. It lays down that any transfer made in contravention of the provisions of the Act shall be voidable at the option of the landlord and the offending tenant''s entire interests in the holding shall be liable to be forfeited and the landlord may within three years of the transfer bring a suit for recovery of possession of the entire interests of such tenant in the holding and shall be entitled to a decree for ejectment. The section clearly provides that if a transfer has been made, in contravention of the provisions of the Act, then the landlord can avoid such a transfer and bring within three years of the date of the transfer a suit for possession against the tenant including the transferee It cannot be said that Section 68 of the Act does not provide for a period of limitation. Mr. Lahiri''s contention is that Section 29 of the Limitation Act, however, speaks of special period of limitation; it contemplates a provision like Section 125 of the Act. Section 125 in its terms applies to cases which are provided for in the schedule attached to this Act. A suit u/s 68 is not included in the. Schedule. Thus, Section 125 does not apply to a case u/s 68 Merely because the language used in Section 63 is different from the language in Section 125, it cannot be said that Section 63 does not prescribe any period of limitation In interpreting Section 63, the plain language of the Section will have to he considered and the fact that a different language has been used in Section 125 is no ground for ignoring the plain language of Section 68. Section 63, in our opinion, clearly prescribes a period of limitation for the suits contemplated by the said section. It was then contended by Mr. Lahiri that the mere fact that a transaction is voidable at the instance of the landlord, does not necessarily follow that suit has to be brought for cancellation of such a document. We do not think that any objection can be taken to this broad proposition. It is not the case of the other side that the suit is barred by Article 91 of the Limitation Act, which provides for suits for cancellation of certain documents.

The next point urged is that the present suit is not covered by Section 63 of the Act at all. In fact, the argument is that Section 63 gave an option to the landlord to bring a suit either on the ground of forfeiture of the tenancy or on the ground of his title to the properly Ordinarily, if a suit is brought for the recovery of possession against the trespasses and it is found that the Defendant is a tenant, the suit will be dismissed on that ground alone. Similarly also, ordinarily a tenant has got a right to transfer his tenancy right. Section 63 only says that if such a transfer is done without the knowledge of the landlord, it can be avoided by him. Thus, the provisions of Section 63 are an exception to the general rule of the right of tenant to transfer his tenancy and in those circumstances, the legislature has fixed a specific period of limitation for recovery of possession by the landlord as against tenant on the ground that he has transferred his tenancy right without the sanction or consent of the landlord. Thus, it cannot be said that if Section 63 of the Act is to be strictly applied, it would be of any particular disadvantage to the landlord.

Mr. Lahiri''s next contention is that he has asked for the recovery of possession as the owner of the land, treating the Defendants as trespassers. It is not a suit for the recovery of the possession of the entire tenancy rights of the Defendants on the ground that they have forfeited their rights to the tenancy. Reading the plaint as a whole and the circumstances of the case, it cannot be said that the suit does not come undo Section 68 of the Act, By bringing the present suit for recovery of possession, the landlord is trying to avoid the transfer u/s 63 and coupled with that, (the Implied relief of avoiding the document), he has asked for possession against the Defendants, one of whom was admittedly a tenant of the Plaintiff, and thus it is clearly terms applies to cases which are provided for (sic) thus no force in the points raised by Mr. Lahiri.

It is next argued by him that he is entitled to the benefit of the extension of the period of limitation u/s 18 of the Limitation Act. The Courts below have considered the facts and have come to the conclusion that the Plaintiff failed to prove that he was prevented by fraud from enforcing his right in a Court of Law. That being so, he is not entitled to the benefit of Section 18 of the Limitation Act. Mr. Lahiri contends that the question of inference from proved facts is a question of law, which can be raised in the second appeal. No doubt, the inference drawn from proved facts may be question of law, but when facts themselves have not been established by evidence on record, the question of inference to be drawn from the proved facts does not arise. The question whether facts have or have not been established by evidence is a pure question of fact, on which the Courts below have given findings and the same cannot be interfered with in second appeal. The Courts below have held that no fraud on the part of the Defendants'' had been alleged in the plaint. What is alleged is that the Plaintiff had no knowledge of the sale-deed and unless it is proved that he was kept away from the knowledge of the transaction by any act of the Defendants, which constitutes fraud on the Plaintiff, the Plaintiff is not entitled to the benefits of Section 18 of the Limitation Act.

There is, in our opinion, no force in this appeal and it is dismissed with costs.