Kamakshya Narain Singh vs Suraj Nath Misra and Others

Das, J.—We are concerned in this litigation with 7''68 acres and 8''57 acres of lands lying in Mauza Chepa Kalan which admittedly was the Jaigir of Brijbhukan and his male descendants. Brijbhukan was succeeded by his son Seodayal, who died in 1859. Seodayal was succeeded by his widow Brijraj Kuari who it appears was allowed to remain in possession of the whole Mauza by the Ramgarh Raj up to the time of her death which occurred some time in 1895. Upon her death one Udai Nath took possession of the mauza. In 1896 the Raj instituted a suit for resumption of the Mauza as against Udai Nath. It appears that Udai Nath died soma time in 1896 and the suit abated upon his death. Upon the death of Udai Nath his widow Ranjit Kuari took possession of the Mauza. The Raj instituted another suit against Ranjit Kuari but it was dismissed on the ground that the previous suit having abated against her husband the Raj was not competent to institute a suit against her. It appears that upon the death of Ranjit Kuari a nephew of Udai Nath took possession of the village in 1907. The Raj thereupon instituted a suit against Udai Nath''s nephew and on the 12th January, 1914, it got a decree as against the defendant in that suit. On the 21st of June 1915 the Raj took possession of the Mauza. The disputed lands have all along been in the possession of the defendants; and, having resumed what the Raj claims to be a resumable tenure, the Raj instituted a suit on the 20th of August, 1919, as against the defendants for khas possession of the disputed lands. The plaintiff''s case was that an under tenure was created in favour of the defendants by either Brijbhukan or Seodayal and that upon the resumption of the tenure the undertenure came to an end and that the Raj became entitled to recover possession of the disputed lands, The defendants'' case was that the disputed lands were settled with them by the Raj and that the settlement was confirmed by Udai Nath and that the defendants were the tenants of Udai Nath and that the suit against them is barred by limitation. Both the Courts have dismissed the plaintiff''s suit on the ground that that it is barred by lapse of time. The only question which we have to consider in this appeal is whether, having regard to the lapse of time, the plaintiff is now entitled to recover possession of the disputed lands.

Section 14 of the Chota Nagpur Tenancy Act upon which the plaintiff relies is as follows: "Upon the resumption of a resumable tenure, every lien, sub-tenancy, easement or other right or interest created, without the consent or permission of the grantor or his successor in interest, by the grantee or any of his successors, on the tenure or in limitation of his own interest therein, shall be deemed to be annulled." Then certain exceptions follow which it is unnecessary to consider in the present case. The question of limitation arises in this way. The defendants assert that the tenure itself came to an end certainly in. 1895 if not in 1859 and that the Raj became entitled to resume this resumable tenure certainly in 1895 if not in 1859, and they say that they have been in possession without any title whatever certainly since 1895 and have acquired a title by lapse of time. The plaintiff on the other hand asserts that though be may have been entitled to resume the tenure in 1895 he altogether denies that having regard to the compromise he Was entitled to resume the tenure in 1859 and time as against the defendants did not begin to run until the actual resumption of the resumable tenure by the Raj which event, according to the plaintiff, happened on the 21st of June, 1915: and he contends that no question of limitation arises as he brought the suit within 12 years from the date of the actual resumption of the resumable tenure.

Two questions arise upon the arguments that have been advanced by the parties; first, what meaning are we to attach to the word "resumption" occurring in Section 14 of the Chota Nagpur Tenancy Act; and, secondly, whether it-can be said that an interest was created in favour of the defendants by the grantee of the tenure or any of the successors of the grantee.

The second question is a short one and may be disposed of at once. The defendants themselves rely upon a title created in their favour by Udai Nath. Udai Nath was undoubtedly in possession of the tenure and in his view rightfully in possession thereof. The defendants have all along claimed that they were in possession of a sub-tenancy properly created in their favour by Udai Nath who, according to them, was the successor of the original grantee.

This being the case of the defendants, they ought not to complain if they ate not put in a better position than if they were what they pretend. In my opinion the word "successor" in Section 14 of the Act means not only a successor de jure but also a successor de facto. That being so, I must hold, upon the case of the defendants themelves, that an interest was created in their favour by the successor in interest of the original grantee and Section 14 of the Chota Nagpur Tenancy Act will apply provided the suit has been brought within time.

This brings me to the question of limitation and the decision of this question must depend upon the meaning of the word "resummon" in Section 14 of the Chota Nagpur Tenancy Act. The extreme argument on behalf of the plaintiff is that resumption means actual re-entry upon the tenure and that as that re-entry look place on the 21st June, 1915, his suit, brought on the 20th August, 1919, is well within time. The extreme argument on behalf of the defendants is that "resumption" means the happening of an event entitling the landlord a resume the tenure and the contention is that as that event happened in 1895, the suit is clearly barred by limitation. I am unable to accept the extreme contention put forward on behalf of the defendants. In my opinion ''resumption'' means an entry upon the land; and the problem for our investigation is whether re-entry is equivalent to actual physical possession of the land. An alternative argument was suggested by Mr. B.C. De and it is this: that re-entry is equivalent to institution of proceedings with a view to resume the land and be contends that as the suit for resumption was brought in 1896 time began to run in favour of the defendants from that year. In my opinion this argument is entitled to succeed. As I understand the position, resumption is nothing more than an unequivocal demand for possession so as to operate as a final election by the landlord to re-enter. Although the event which entitled the plaintiff to resume the tenure bad happened, it was not obligatory on the plaintiff to resume the tenure. He might indeed have resumed it or have made a fresh grant to the person actually in possession of the tenure or have allowed the defendants to remain in possession of the disputed lands paying a rent for the same to him. It was therefore necessary for the plaintiff to resume the tenure before he could be heard to say that the interest of the defendants has been annulled. Until the final election to resume the tenure was made, the defendants were entitled to say that they were in possession of an interest in the disputed lands by virtue of transaction created in their favour by one against whom no action had been taken by the plaintiff and as such they were entitled to remain in possession of that interest. I think therefore that ''resumption'' means an unequivocal demand for possession which operates as a final election by the landlord to reenter upon the land. This unequivocal demand for possession took place in 1896 and operated, in my opinion, as a resumption of the tenure. The present suit having been brought more than twelve years from the date of the unequivocal demand for possession, is clearly barred by limitation. I would dismiss this appeal with costs.

Ross, J.

I agree.