Nitai Lal Dutta vs Gobinda Bhushan Sen and Others

Mohammad Noor, J.—The facts of the case out of which this appeal has arisen are simple though a number of unnecessary facts and documents brought on the record have made them somewhat complicated and have clouded the real issue involved in it. The suit relates to two pieces of land, being survey plots Nos. 2396 and 2397 situated within the town of Jharia in the district of Manbhum. They are within the area referred in the suit as Manbad which is the barmottar property of some Brahmins who for the sake of brevity may be called the Hazras''. After division and subdivision among the Hazras these two plots came to the share of one Ramkumar Hazra, and on his death to the share of his three sons, Raghu, Sibu and Sambhu. It is an admitted fact that these plots along with some other plots of land formed the occupancy holding of one Lochan Dutt the ancestor of defendants 2, 3 and 4, the Hazras being their landlords. After division and subdivision among the descendants of Lochan Dutt, these two plots along with another plot No. 1269 came to be possessed by one Bileshwar Dutt, the father of defendants 2 to 4 as raiyat with an annual rent of Rs. 1-8-0. So far the position is admitted, i.e., defendants 2 to 4 are the raiyats of the three plots 1269, 2396 and 2397 on an annual rent of Rs. 1-8-0, and Raghu Hazra and his brother were their landlords. The plaintiff claims to have acquired from the Hazras mukarrari of plot 1269 along with some other lands under a deed dated 8th October 1913 (Ex. 3). We are however not concerned with that plot as the suit is, as I have said, in respect of the other two plots only. It appears that Raghu Hazra executed a sale deed (Ex. A-l), on 20th January 1917 in respect of all the three plots of land in favour of defendant 1 who is the sister''s son of defendants 2 to 4. Thereafter there was the settlement proceeding in which defendant 1 alone was recorded as the landlord of these two plots and the plaintiff was recorded in respect of plot No. 1269. After the settlement operation the plaintiff got a sale-deed in respect of two-thirds of these two plots from Sibu and Sambhu, the two brothers of Raghu who claimed to have that much share in them presumably on the ground that Raghu had no more than one-third share in them. The simple question in this case is whether the defendant 1 acquired any title to the proprietary right in these two plots from Raghu by virtue of the sale-deed (Ex. A-l) dated 20th January 1917, or whether that sale-deed did not operate beyond one-third share of the two plots, the other two-thirds being the property of Raghu''s two brothers Sibu and Sambhu, who conveyed it to the plaintiff under Ex. 8 dated 17th February 1925.

The present suit is for a declaration of the plaintiff''s title to the two-thirds share of the two plots on the basis of his purchase from Sibu and Sambhu, and for partition by metes and bounds between him and defendant 1 so as to separate his; two-thirds share from the one-third share of defendant 1 by virtue of the latter''s purchase from Raghu alone. The plaintiff also impleaded in the suit the raiyats, defendants 2 to 4, and asked for a permanent injunction against them restraining them from erecting any house upon the land and for an order that any house which may have been built by them upon the land should be removed and in case of failure on their part to do so it should be demolished by the Court. The defence was a denial of the plaintiff''s title to the two plots in question. It was claimed to be entirely owned by defendant 1 by virtue of his purchase, from Raghu under Ex. A-l. It was alleged by the defendants that there was a partition among the three brothers Raghu, Sibu and Sambhu and the two plots in suit and, some other land fell to the share of Raghu alone. The learned Subordinate Judge has dismissed the suit holding that the plaintiff had no title and that the suit was barred by limitation. The plaintiff has preferred this appeal. I must state at the outset that the suit seems to me of a very peculiar nature. Two causes of action against two sets of defendants have been combined in one suit. In one suit the plaintiff has sued for a declaration of his title as proprietor in respect of two-thirds of the land against defendant 1 and for partition of his share after a declaration of that title and has also sued the admitted raiyats of the land for an independent relief against them in respect of the house which they have built on it.

It is again curious that the plaintiff has not confined his relief for injunction and demolition of house on land which may eventually fall to his share after his title be established and his portion separated. He has asked for demolition of house standing on any portion of the two plots. In my opinion the learned Subordinate Judge ought to have called upon the plaintiff to elect. The two claims in the suit were absolutely independent and unconcerned with one another. A suit against an alleged co-sharer for declaration of title and partition has nothing whatsoever to do with a suit against occupancy raiyats calling upon to remove a building from his holding. The suit, in my opinion, ought not to have been tried in this form. The result has been that a number of unnecessary materials were brought on the record which must have prolonged the trial and has in fact unnecessarily prolonged the hearing of the appeal.

Again, I am not quite sure whether the plaintiff''s suit, so far as the tenant defendants are concerned, is maintainable at any rate in the civil Court. u/s 21, Chota Nagpur Tenancy Act, an occupancy raiyat is not entitled to use his land in such a way as to render it unfit for the purpose of tenancy. The penalty for such use is provided in Section 22, and the raiyat is liable to be ejected. A suit for such ejectment is entertainable exclusively by the Deputy Commissioner u/s 139(4), Chota Nagpur Tenancy Act. I have grave doubts whether under the tenancy law of Chota Nagpur a suit lies against an occupancy raiyat for injunction to restrain him from using his land in a way detrimental to the tenancy. The landlord by suing for injunction and demolition of the house cannot circumvent the jurisdiction of the Deputy Commissioner. Even under the Bengal Tenancy Act the right of the landlord is to get compensation and to have the misuse remedied if it is remediable. In case compensation be not paid and the remediable misuse be not remedied, the landlord is entitled to ejectment: Section 155, Bengal Tenancy Act.

I find that the question about the jurisdiction of the civil Court to entertain a suit like this was raised but seems to have not been pressed by the defendants. At any rate, the plaintiff''s suit so far as it relates to the relief against defendants 2 to 4 is bad as it is combined with a suit which is for declaration of title and partition against the plaintiff''s alleged co-sharer, defendant 1. However, as the plaintiff''s suit fails on the merits it is not necessary for me to pursue this point further. I now come to the main point in the case, viz., whether the plaintiff is entitled to two-thirds share of the two plots and, as I have said, the only question is whether Raghu the elder brother, was entitled to transfer the whole of it to defendant 1 on 20th January 1917. The learned Subordinate Judge has said that perhaps defendant 1 is a benamidar for defendants 2 to 4. This was not the case of the plaintiff nor was it of any of the defendants, and so far as this case is concerned the question is immaterial. Now the Record of Rights is entirely against the plaintiff. It has a presumptive evidentiary value. Under the law the entries must be presumed to be correct unless the contrary is proved by evidence. Defendant 1 has been recorded as landlord of the two plots by virtue of his purchase from Raghu. It is of importance that while a purchaser from Raghu Hazra i.e., defendant 1, was getting his name recorded as the landlord of these two plots during the settlement operation, no objection whatsoever was raised on behalf of the two brothers. The plaintiff in his deposition has admitted that during the time of the settlement operations he understood that defendant 1 was the sole landlord of the two plots. It was later, on information received from Sibu and Sambhu, that he came to know that their share was not affected by the sale by Raghu. Defendants'' case is, as I have said, that the three brothers had separated and that these two plots along with some other lands of Manbad came into exclusive share of Raghu. That there was partition between the three brothers seems to have been admitted by the plaintiff''s witness No. 5, though he makes a reservation that so far as the land in suit is concerned there was no partition.

In my opinion, the learned Subordinate Judge has rightly held (the parties being governed by the Dayabhag school) that once there is a partition between brothers, it must be taken that all the properties had been separated. From the two documents which are of very great importance, viz.. Exs. C (2) and E (2) executed by Raghu alone, it is clear that at the time of their execution (1914-15) Raghu at least claimed to have separated from his two brothers. The learned Advocate for the appellant has referred to a number of documents showing that the three brothers executed them jointly. But their joining in a particular document in respect of other properties will not show that they had not separated. The utmost which these documents show is that the three brothers had shares in those properties. It appears that one of the brothers Sibu, was present in Court and as soon as the attention of the Court was drawn to his presence he walked away. Though present in Court he did not dare to come into the witness-box to prove that he was joint with Raghu and that in 1917 Raghu had no exclusive right to transfer these two plots. It is unnecessary for one to refer to the documents in detail. In my opinion, there are clear indications on the record to show that the brothers had separated and that Raghu was entitled to transfer the two plots exclusively, and he having done so in favour of defendant 1 the two brothers had no right to transfer it to the plaintiff after the Record of Eights in 1925. It seems that the plaintiff entered into what may be called a speculative transaction. The value of the property is not at all considerable, the rent realizable by the plaintiff even if his case succeeded will be Re. 0-10-8. The real object of the plaintiff was to acquire a portion of the landlord''s right in these two pieces of land and thereby use measures against defendants 2 to 4 to exact some money from them as they had put up buildings on these lands. Even if the plaintiff had any title, for the reasons given by the learned Subordinate Judge and for what I have stated in the earlier part of my judgment, the plaintiff was not entitled to any relief against defendants 2 to 4, at any rate, in the present suit. In my opinion, there is no merit in this appeal and I would dismiss it with costs to the contesting respondents.

Varma, J.

I agree.