Kuldip Mahto vs Muhammad Hashim and Others

Mullick, J.—The main point of law in this case is whether the proprietor of an estate can bring a suit for possession against the transferee of a non-transferable occupancy holding daring the currency of a thika lease to third parties.

The facts of the present case are as follows: The plaintiffs are proprietors of an estate deriving interest from their mother by a tamliknama. Before the tamliknama their mother had executed a thika lease for a term of five years from 1324 Fs. to 1328, which lease continued to subsist till it was determined by the payment of the zerpeshgi money in or about 1923. Defendant 11 had an occupancy holding which was not transferable without the consent of the landlord and he gave an ijara of it to defendant 1 who, unable to get possession, brought a suit for the ijara money and obtained an ex-parte decree against defendant 11 on 9th May 1916. In execution of that money decree he brought the holding to sale and took possession on 9th September 1919.

On 19th September 1922, the plaintiffs brought the suit, out of which this second appeal arises for a declaration of their title and recovery of possession of the holding from defendant 1. They also asked for mesne profits.

The Munsif decreed the suit. In appeal the Subordinate Judge has affirmed that decision. A minor point is taken at the outset that the plaint itself admits that there has been no transfer of possession from defendant 11 to defendant 1. It is pointed out that the plaintiff speaks of collusion between defendant 11 and defendant 1 and that if defendant 11 is skill in possession of the holding then the plaintiffs are not entitled to khas possession against anyone.

The learned Subordinate Judge, however, has pointed out that the plaintiffs have never admitted in their plaint that defendant 11 is still in possession or that defendant 11 never gave the holding in ijara to defendant 1. What he has found is, that seeing that the holding cannot be transferred without the consent of the landlord, defendant 1 and defendant 11 together hit upon the plan that defendant 1 should take an ijara, so that defendant 1 could sue for the consideration money and sell up the holding in execution of his decree. The finding is that the proceedings in the suit were not illusory and that defendant 1 was a genuine purchaser at the sale and that possession duly passed to him.

We then come to the real point of law in the case, namely whether, while the zerpeshgi thika was running, were the plaintiffs entitled to bring a suit for ejectment against defendant 1.

On behalf of the appellant, who is defendant 11, reliance is placed on Ramnandan Chetti v. Pulikutti Servai [1898] 21 Mad. 288. In that case the proprietor A having leased land to B, sold it to C. Persons having trespassed, B offered no objection and it was alleged that he was in collusion with them. Upon C suing before the expiry of the lease to eject the trespassers, it was held that the plaintiff was not entitled to the relief sought, nor could he be entitled to amend the plaint by adding a prayer for a declaration of his reversionary right. The principle upon which that case was decided was that the proprietor had no cause of action while the lease was running. The authority of that case, however, has been doubted in subsequent cases in the Madras High Court and in the Calcutta High Court in Mutta Musaliar v. Chekkutti Musaliar [1917] 5 M.L.W. 330 and Raj Kumar Mandal and Others Vs. Ali Mia and Others, .

It is true that while the lease is running the proprietor can bring a declaratory suit to protect his reversionary right; he can also wait till the determination of the lease and then sue to eject the transferee; but is he restricted to these remedies only? In Womesh Chandra Goopto v. Raj Narain Roy 10 W.R. 15, the question was whether a talukdar who had purchased an under-tenure in execution of a decree for rent could sue to eject a trespasser who by reason of 12 years'' adverse possession against the under tenure-holder had acquired a prescriptive right against the under tenure-holder. It was held that the proprietor''s cause of action commenced after his auction purchase and not at the time when the trespasser first went upon the land. But the case did not decide that while the lease was running the proprietor could not bring a suit for possession. The question whether the present suit lies has been answered in the affirmative in Rajkumar Mandal''s case and Maliyakkal Kathiri''s case [1917] 5 M.L.W. 330 referred to above. The reason for this answer seems to me quite clear. The proprietor is in possession through his tenure-holder.

A trespass against the tenure-holder is an encroachment upon the right not only of the tenure-holder but of the proprietor also, and if the tenure-holder is dispossessed, the proprietor has a cause of action and is entitled to recover possession through his tenant. He is not of course entitled to khas possession while the tenancy exists, but he is entitled to delivery of formal possession through his tenant and for an order directing that the trespasser shall be ejected. It may be that where there has been no real dispossession of the tenant and the alleged trespasser''s occupation is permissive, no cause of action arises to the proprietor; but in the present case the findings are that the possession of the holding has passed from defendant 11 to defendant 1 and the fact that it has passed not by a private sale, but in invitum by the operation of a decree of a civil Court makes no difference.

In my opinion the Courts below were right in holding that the proprietors had a cause of action for the ejectment of the transferee as it is admitted that defendant 11 was not competent to transfer the holding to defendant 1, without the consent of the landlord, and the transferee''s possession was therefore unlawful.

Defendants 12 and 13, the zerpeshgidars, are said to have declined to recognize the transfer and to have continued to receive rent from defendant 11. That, however, has not been found by the lower appellate Court. He finds that there has been in fact a transfer of the holding without the consent of the landlord and that defendant 1 is consequently liable to ejectment as trespasser.

It is, however, objected that in any event the plaintiffs were not entitled to sue for khas possession as their title to 3 khas possession did not accrue till May 1923 when the zerpeshgidars went out of the land. Now it is true that ordinarily relief must be given according to the fact a found to exist at the time of the institution of the suit. There are, however, exceptions to this general rule and if litigation can be shortened by taking notice of facts which have come into existence since the institution of the suit, the Courts are entitled to give relief on the basis of the new facts.

In this case no harm can possibly be done by giving the plaintiffs a decree for khas possession, for the zerpeshgidars have gone out of the land and no one is entitled to khas possession but the plaintiffs. To refuse relief would be merely to drive the plaintiffs to another suit. This was the reason for the decision in Rai Charan Mandal v. Biswa Nath Mandal [1915] 20 C.L.J. 107. In that case the cause of action was a good one, but during the pendency of the suit the plaintiffs transferred their interest to another party; and it was argued that the plaintiffs'' suit must be dismissed and the transferees must be relegated to a fresh suit upon a new cause of action. It was held that if the original relief claimed became inappropriate by reason of subsequent changes the Court would take notice of the circumstances, and by way of analogy attention was drawn to the provisions of Order 41, Rule 33, Civil P.C.

In my opinion the judgment and decree of the lower appellate Court were right and the appeal must be dismissed with costs.