Shiva Prasad Singh vs Bhagwandas Agarwala and Others

Harries, C.J.—This is a plaintiff''s second appeal against a decree of the lower Appellate Court substantially dismissing the plaintiff''s claim. The lower Appellate Court did give the plaintiff possession of certain items of property, and against that portion of the decree the respondents have filed a cross-objection.

The material facts of the case can be shortly seated as follows: Jodharam and his co-sharers had a raiyati holding having occupancy rights in mouza Dhanbad. The total area of the holding was approximately 14.9 acres. In the year 1920 Jodharam sold approximately 5 acres of this holding to defendants 1 to 3 and this sale deed is dated 7th October 1920. Thereafter the plaintiff received the rent of whole holding, though it would appear that the defendants 1 to 3 contributed the rent in respect of their portion, namely 5 acres. The plaintiff however accepted the rent in the name of Jodharam and thereby acknowledged Jodharam as his tenant of the whole holding.

In the year 1930 Jodharam executed a release in favour of the plaintiff; but both the Courts below have held as a fact that this transaction was not a genuine one and had no effect whatsoever. In fact, after the year 1930 the plaintiff gave receipts for the rent of the whole holding in the name of Jodharam. In short, uptil the institution of this suit, the plaintiff had insisted that Jodharam was still tenant of the whole holding. In the, present suit the plaintiff contended that the transfer of 7th October 1920 to defendants 1 to 3 had no legal effect whatsoever. It is said that this land is subject to the provisions of the Chota Nagpur Tenancy Act and that the transfer could have no effect by reason of Section 46 of that Act. It is conceded that the transfer could not give to defendants 1 to 3 a tenancy in this property.

The Court of first instance came to the conclusion that after this transfer the transferees, namely defendants 1 to 3, held adversely to the plaintiff. The trial Judge was of opinion that as the transfer gave defendants 1 to 3 no title, they must have been in possession in consequence adversely to the plaintiff. Accordingly the trial Court came to the conclusion that with regard to one item of property defendants 1 to 3 had obtained a title by adverse possession. The trial Court further held that with regard to other items of property which defendants 1 to 3 were in possession through certain sub-tenants, these defendants had also obtained title by adverse possession. The learned District Judge on appeal upheld the finding of the trial Court with regard to the first item of property of which the defendants 1 to 3 were in khas possession. With regard to the other items of property which were in the possession of sub-tenants, the learned District Judge held that defendants 1 to 3 had not acquired a title by adverse possession. He accordingly decreed the plaintiff''s claim with regard to these items but did not give the plaintiff actual physical possession. He merely held that the plaintiff was entitled to collect the rents from these sub-tenants.

In my view, this case can be disposed of upon one point. The plaintiff throughout has insisted that Jodharam was the person liable to pay the rent for the whole holding. After the transfer in 1920 the plaintiff gave receipts for the rent of the whole holding in the name of Jodharam. Even after the alleged surrender in 1930 the plaintiff continued to give receipts for the rent of the whole holding in Jodharam''s name. The learned District Judge, though holding that the release was not genuine and that it had no legal effect, seems to have been of opinion that it was a renunciation on the part of Jodharam which was binding upon him. It is to be observed that a tenant cannot renounce his tenancy if the landlord insists on treating him as a tenant. In the present case it is difficult to treat the transaction of 1930 as a renunciation when it has been found as a fact by both the Courts that it was not a genuine transaction or in other words that it was a purely colourable transaction. Such a transaction can have no effect whatsoever either as a release or renunciation.

In any event it is clear that the plaintiff refused to accept any renunciation by Jodharam, because it is found as a fact that after 1930 the rent of this holding was paid in full and that the landlord insisted on treating the rent as being paid by Jodharam and gave his receipts accordingly. That being so, the plaintiff cannot now be heard to say that Jodharam was not his tenant right up until the date when this suit was instituted. If Jodharam was his tenant at the date of the institution of the suit, then clearly the plaintiff had no right to immediate possession. Having no such right to immediate possession, the present suit against, all the defendants was bound to fail. In my view, once it is held that Jodharam is still tenant of this holding, the plaintiff''s claim was bound to fail in its entirety.

In my judgment, the plaintiff''s claim should have been dismissed by the learned District Judge and accordingly I would dismiss this appeal and allow the cross-objection filed on behalf of the respondents. The plaintiff should pay the costs in this Court and in the Courts below. The defendants 1 to 3 and defendants 8 and 9 will be entitled to separate costs.

Agarwala, J.

I agree.