Shiva Prasad Singh vs Mandira Kumari Debi

Harries, C.J.—This is a plaintiff''s first appeal from a decree of the learned Subordinate Judge of Dhanbad decreeing his claim in part for possession of certain property. There is also a cross-objection of the respondent claiming that the suit should have been dismissed in its entirety. The (plaintiff is the Raja of Jharia and the proprietor of what is known as the Jharia Estate. The claim was in respect of about 82 bighas of land.

With regard to 38 bighas 13 kathas, the plaintiff claimed possession on the ground that he had terminated whatever interest the defendant had in the property. With regard to the remaining 43 bighas, the plaintiff alleged that the defendant was a mere trespasser and claimed to eject her upon the ground that the latter had no title whatsoever to the property.

The plaintiff''s case can be shortly stated as follows: On 30th Aswin 1325 B.S. Thakur Prankrishna Singh, since deceased, husband of the defendant, applied to the Raja for settlement of certain homestead land in Jharia and Fatehpur. The lands were measured and the area was found to be 38 bighas 13 kathas. The Raja agreed to make a settlement of this land in favour of Thakur Prankrishna Singh at a rental of Rs. 5 per bigha and a salami of Rs. 1000. No written agreement was entered into between the parties; but it is clear that the Raja did agree to these terms as will be seen from a note signed by him for the information of his own office.

This note is printed at page 4 of part 3 of the paper-book. It is alleged that the parties agreed that a lease should be executed and that Thakur Prankrishna Singh immediately took possession of the land and paid the salami of Rs. 1000. No lease however was ever executed; but the defendant''s husband remained in possession of the land and paid no rent. In 1925 the Record of Rights was published and in the Record of Rights the defendant''s husband was wrongly shown as a tenure-holder in respect of this property. "The plaintiff gave notice to the defendant calling upon her to give up possession of the property, but as she refused to do so the present suit was brought. With regard to the 43 bighas of land, the plaintiff alleged that Thakur Prankrishna Singh had gradually encroached upon the plaintiff''s land and had in course of time wrongfully taken possession of these 43 bighas; hence he claimed possession of this land also.

In her written statement the defendant pleaded that the Raja had agreed to give a permanent lease of the whole 82 bighas of land and that salami of Rs. 1000 had been paid to the plaintiff and further that the plaintiff had been given certain other lands in exchange. The defendant admitted that no lease had been executed, and in para. 10 she stated that she was entitled to maintain a suit for specific performance of the agreement to lease. She further pleaded that the claim was barred by estoppel, acquiescence and waiver and that the suit was barred by the principle of res judicata. Limitation was not expressly pleaded; but the point was raised at the trial and an issue framed upon it.

The learned Subordinate Judge did not accept the defendant''s case that there had been an agreement to lease the whole area of 82 bighas. He found that the agreement between the parties related only to 38 bighas 13 kathas and that with respect to ''the other land the defendant had encroached upon it. The learned Judge came to the conclusion that as there had been no registered lease of the 38 bighas odd the defendant''s title became adverse to the plaintiff from the time her deceased husband took possession, and as the defendant and her husband had asserted title as tenure-holders adversely to the plaintiff for more than twelve years she had acquired a title to the 38 bighas odd and could not be ejected. With regard to the area of 43 bighas, the learned Judge came to the conclusion that the defendant had not been in adverse possession of 22 bighas odd of this land for more than twelve years.

He however held that with regard to an area of 20 bighas odd, the defendant had been in possession adversely to the plaintiff for the statutory period and accordingly she had a title to it. In the result the plaintiff''s claim was partly allowed and a decree for possession was given in respect of about 22 bighas only. The finding of the learned Subordinate Judge that the agreement to lease comprised only 38 bighas 13 kathas has not been challenged by the defendant. The documents make it clear that the defendant''s husband only applied for settlement of 38 bighas 13 kathas and that the salami of Rs. 1000 was paid in respect of the settlement of this land and this land only. The defendant''s husband was undoubtedly recorded in the Record of Rights in 1925 as being a tenure-holder of 82 bighas of land, and in my view there can be no doubt that the defendant''s husband encroached considerably on the plaintiff''s land and thereby increased his holding from 38 bighas odd to roughly 82 bighas. The case has been argued upon the finding that 38 bighas odd only were the subject-matter of this agreement and that the defendant''s title, if any, to the remaining 42 bighas odd is based upon adverse possession by encroachment for over twelve years.

On behalf of the appellants it has been contended, that the learned Judge was wrong in holding that the defendant had a good title to the area of 38 bighas, 13 kathas by adverse possession. It was urged that upon the facts of this case no question of adverse possession can possibly arise with respect to this area. It is said that the Raja agreed to lease this area to the defendant''s husband and that in pursuance of the agreement the defendant''s husband took immediate possession of the property and paid salami of Rs. 1000. According to the plaintiff, the defendant''s husband and afterwards the defendant continued in possession of this land in pursuance of the agreement and as such their possession could never be regarded as adverse to the plaintiff. During such possession, the plaintiff contends that the defendant was entitled to call upon the Raja to grant a lease in proper form and that if he refused to do so, she or her husband could have brought a suit for specific performance.

The learned Subordinate Judge has held that there was never any refusal on the part of the Raja to grant a lease until he gave notice to the defendant calling upon her to give up the property. Such a notice would, of course, amount to an intimation that the Raja refused to grant a lease. The plaintiff contends that even after this notice was given a suit for specific performance could have been brought within three years of the date of the notice : see Article 113, Limitation Act. On the other hand, the defendant has contended that there was a present demise of this property and as the demise was not by a properly executed and registered instrument it was void. Accordingly, the defendant contends that her husband entered under a void lease which gave him no title whatsoever and therefore time began to run against the plaintiff from the date upon which her husband took possession.

In my view there was no actual demise in this case and such was never alleged in the written statement. In para. 4, it is stated that the plaintiff agreed to give a lease in permanent nishkar right of the entire land in suit to the defendant''s husband, and in para. 10 the defendant submits that she had a right to get specific performance of the oral contract referred to in paras. 2 and 3 of the plaint which was an oral contract to grant a lease. In short, in the written statement the defendant admitted that all that had happened was that an oral agreement had been made between the parties respecting this 38 bighas 13 kathas of land and that Thakur Prankrishna Singh had paid Rs. 1000 salami and had taken possession of the land in pursuance of that agreement. In my judgment there was no actual demise of the land but only an agreement to lease the same and Thakur Prankrishna Singh took possession not of land demised to him there and then but of land which the plaintiff agreed to lease to him by a registered lease to be executed thereafter.

The respondent relies on a number of cases to support his contention that possession of the defendant''s husband was adverse from the moment he entered upon the land. The first case relied upon is Magdalen Hospital v. Alfred Knotts (1879) 4 AC 824 the facts of which are as follows: The governors of Magdalen Hospital made in 1783 a lease of certain land of the hospital for ninety-nine years, at the rent of "one peppercorn (if lawfully demanded)." The only covenants, on the part of the lessee, were to indemnify the governors from all taxes, &o. during the term, and to surrender the premises at its end; and, on the part of the governors, for quiet enjoyment. No act had been done until now to avoid the lease, or to interfere with the persons holding the land. In July 1876, the governors brought an action to recover possession of the land thus leased. It was held that the lease was absolutely void within the provisions of the statute 13 Eliz., Clouse 10.

That consequently the right of the governors to re-enter on the land existed from the moment of the execution of the lease, and that right not having been sought to be enforced till now, was barred by the statute of limitation. It was also held by Lord Selborne that if any rent, however small, had been reserved and received, it would have created the legal relation of a tenancy from year to year, and the statute of limitations could not have run. It will be observed that in this case the tenant entered under a lease which was void ab initio and held throughout under that void lease. The lease gave him no title of any kind to the property and he could have been ejected from the moment he had entered into possession.

That being the case, the House of Lords held that time began to run against the landlords from the date upon which the tenant took possession. Throughout no rent was ever demanded or received. This case differs from the case before the Court because there was an actual demise which was void. In the present case there was no actual demise but merely an agreement to lease. The defendant''s husband did not take possession in consequence of an instrument which gave him no title whatsoever, but he took possession in consequence of the agreement to lease and upon paying salami of Rs. 1000. He entered into possession with the consent of the landlord and he did not purport to hold the land under any instrument which gave him no title whatsoever to the property.

Reliance was also placed upon the case in Bageswari Charan Singh v. Jagarnath Kuarl AIR (1929) Pat 117. In that case it was held that a gift of a portion of an estate in contravention of Section 12-A(1)(a), Chota Nagpur En-cumbered Estates Act, 1876, is void ab initio and not merely from the death of the donor, and the possession of the donee is adverse to the proprietor of the estate from the date of the alienation. This case is very similar to the case in the House of Lords to which I have referred. The donee entered into possession as a result of a transaction which was void ab initio, and that being so, his possession was adverse from the date of the gift and time began to run in his favour from such date. Counsel for the respondent further relied upon Abdul Jabbar Khan v. Gulab Khan AIR (1933) Pat 288. In this case also, possession was taken under a void transaction and that being so time began to run against the owner from the date of the transaction.

All these cases are, in my view, clearly distinguishable from the present case. As I have stated earlier, the transaction entered into between the parties in this case was a perfectly valid one. Possession was taken in pursuance of it, and it cannot be said that the defendant''s husband took possession and asserted a title which was in any way adverse to the plaintiff. He took possession pending the execution of a registered lease and according to para. 10 of the written statement the nature of the possession of the defendant''s husband and of the defendant remained the same until the suit was instituted. The defendant''s husband never took possession of this property as a lessee or as a tenure-holder, and he was, in my view, a tenant-at-will or something of that nature pending the execution of a registered lease,

It has been contended however that the nature of the possession of the defendant''s husband must have changed because in the year 1925 he was regarded as a tenure-holder of 82 bighas of land which included the area of 38 bighas 13 kathas which was the subject-matter of this agreement to lease. It is urged that the Record of Bights shows that the defendant''s husband was claiming to be a tenure-holder and this adversely to the plaintiff. That being so, it is said that limitation began to run in his favour from the time when he put forward this claim. Even if this contention be accepted, it does not assist the defendant. There is no evidence that the defendant''s husband openly asserted an adverse title until the publication of the record of rights and that was in the year 1925.

If time began to run in 1925 in favour of the defendant which is by no means clear, then the suit is not barred by limitation. The view that I take that the possession of the defendant''s husband at its inception was, not adverse to the plaintiff is supported by the case in AIR 1931 79 (Privy Council) . It had long been held in India that the English rule in Walsh v. Lonsdale (1882) 21 Ch D 9 applied to India and that a person who had entered into possession under an agreement to lease was in equity in very much the same position as the actual lessee. It was held however in AIR 1931 79 (Privy Council) that a person who took possession under an agreement to lease was not in the same position as he would be under English law. The facts in AIR 1931 79 (Privy Council) can be shortly stated as follows; In 1913, the appellant, having verbally agreed with the respondent to grant him a permanent lease of a plot of land at Rs. 80 per month, let him into possession. Shortly afterwards, the respondent, with the knowledge and approval of the appellant, erected structures on the land at a cost of over Rs. 10,000. In December 1918, the appellant definitely refused to grant the respondent the agreed lease, and, in 1923, sued to eject him after a month''s notice to quit.

Under the Limitation Act, 1908, Schedule 1, Article 113, the respondent''s right to sue for specific performance of the verbal agreement was barred in December 1921.

It was held that there being no lease made by a registered document, as required by Section 107, T.P. Act, 1882, the appellant was entitled to eject the respondent, with liberty to him to apply to remove the structures; had the respondent''s right to sue for specific performance not been barred, he could have claimed the execution of an instrument, which he could have registered, the appellant''s suit being stayed in the meantime. It was further held that even if an English equitable doctrine should be applied in any case so as to modify the effect of an Indian Act, which may well be doubted, the English equitable doctrine of part performance, referred to in Maddison v. Alderson (1882) 8 AC 467, affecting the provisions of an English statute as to the right to sue upon a contract, cannot be applied, so as to create, without writing, an interest, which Section 107, T.P. Act, enacts can be created only by a registered instrument.

This case clearly lays down that a person. in possession under an agreement to lease is in a very different position from a person in possession under a lease which has been registered. He has no defence to a claim for ejectment other than a right to insist upon specific performance of the contract to lease. If he is sued for ejectment, he can apply for a stay of proceedings to enable him to institute a suit for specific performance if such is not barred by limitation. In AIR 1931 79 (Privy Council) , the defendant''s right to sue for specific performance was barred in December 1921, because the appellant had definitely refused to grant such a lease in December 1918. Accordingly the respondent had no defence whatsoever to the suit and a decree for possession was passed. In the present case, the learned Judge has found and rightly found that the plaintiff had never intimated that he would not grant a lease until he gave notice to the defendant calling upon her to vacate the premises. Indeed, the defendant herself in para. 10 of the written statement submits that she had a right to maintain a suit for specific performance when the suit was instituted. The right to maintain a suit for specific performance was not barred when the present suit was instituted and that being so the defendant could have applied to the Court to stay proceedings in order to prosecute her suit for specific performance.

If she could obtain stay of proceedings to institute a suit for specific performance, it clearly shows that she was not a mere trespasser and that her possession was not adverse to the plaintiff. A person who holds under an agreement to lease has no right whatsoever to apply for specific performance if he has repudiated the agreement to lease and asserted a title adverse to the proposed lessor. If the defendant, as is urged by her, had a right to maintain a suit for specific performance of the agreement to lease when this suit was instituted, then, it must follow that up till that time she was not holding adversely to the plaintiff but on the contrary was holding the land under the agreement to lease and such would not give her any title under the Limitation Act.

Even assuming that by reason of an assertion of adverse title at the date of the publication of the Record of Bights in 1925, the defendant could not claim specific performance when this suit was instituted, yet as I have stated earlier she has no title by limitation by reason of the fact that twelve years had not expired from the date of the publication of the Record of Rights when this suit was instituted. In my judgment the learned Judge was wrong in holding that the suit with respect to 38 bighas 13 kathas of land was barred by limitation.

It was also urged by counsel that the plaintiff''s suit with respect to this property was barred by reason of the dootrine of estoppel, acquiescence and waiver. After the defendant''s husband took possession of the property, structures were erected upon it, and such must have been erected to the knowledge of the plaintiff or his agents. Accordingly, it was said that the plaintiff had stood by and allowed the defendant''s husband to expend money on the property. Therefore his suit to eject the defendant was barred by estoppel and acquiescence. A precisely similar point arose in AIR 1931 79 (Privy Council) to which I have already referred. In that case very valuable structures had been erected, and it was contended that the suit was barred by the doctrine of equitable estoppel, laid down in Gregory v. Mighell (1811) 18 Ves 328, as explained in Ramsden v. Dyson (1866) 1 HL 129. Dealing with this part of the case, Lord Russell, who delivered the judgment of. the Board, observes at page 1243:

This is no case of money being expended by the respondent in any mistaken belief as to his legal rights, or of the appellant knowing of the existence of any such mistaken belief, or encouraging the respondent by abstaining from asserting a right inconsistent with the acts of the respondent. Observe the true facts. In 1913 the respondent obtained a verbal agreement for the grant of a perpetual lease, under which agreement he could have sued for and obtained and registered an instrument creating his title to enjoy the property in perpetuity. That agreement continued to be enforceable against the appellant until the month of December 1921. The structures were erected on the land many years before that date, and they were erected, not in any mistaken belief by the respondent of his rights in regard to the land, but in assertion of rights which he correctly believed to be his; not by reason of any encouragement or abstention on the part of the appellant, but by reason of the agreement which he was then entitled to enforce against the appellant.

These observations apply equally to the facts of the present case. The defendant''s husband entered into possession under an agreement to lease and began to erect these structures not in any mistaken belief as to his rights but in assertion of rights which he correctly believed to be his. The plaintiff did not in any way mislead or encourage the defendant by not interfering because he could not have interfered as long as the defendant''s husband had a right to sue for specific performance. In my judgment, the fact that the plaintiff did not interfere but on the contrary stood by and permitted the structures to be erected does not bar this suit by reason of any doctrine of estoppel, acquiescence and waiver. This Court is bound by the principles laid down in Magdalen Hospital v. Alfred Knotts (1879) 4 AC 824, and that being so, I am constrained to hold that there is no force in the contention that the plaintiff could not maintain his suit to recover this 38 bighas 13 kathas of land by reason of the doctrine of estoppel, acquiescence and waiver.

It was also urged in this case that the plaintiff''s suit was barred by the doc-trine of res judicata. It appears that a plot of land of about 11 bighas was compulsorily acquired under the Land Acquisition Act and that the defendant''s husband was held to be entitled to compensation as a tenure-holder. It has been contended by the defendant that in these proceedings it was found that the defendant''s husband was a tenure-holder and accordingly that it is not now open to the plaintiff to allege to the contrary. It is to be observed however that the plot of land in question formed no part of the area of 38 bighas 13 kathas which was the subject-matter of the agreement to lease. That being so, any finding as to the nature of the possession of the defendant''s husband with regard to the plot of 11 bighas can in no way operate as res judicata with regard to the suit in so far as it deals with the area of 38 bighas 13 kathas. The learned Subordinate Judge held that the suit with regard to this area was not barred by res judicata and in my view rightly.

Its was also contended that the suit was barred by res judicata by reason of the fact that the plaintiff had obtained certain decrees for cess against the defendant''s husband, and it is said that those decrees for cess were given on the basis that the defendant''s husband was a tenure-holder of the property in question. By Section 41 (1), Cess Act, 1880, every holder of an estate has to pay to the Collector the entire amount of the local cess calculated on the annual value of the lands comprised in such an estate; and by Sub-section (2), every holder of a tenure shall yearly pay to the holder of the estate or tenure within which the land held by him is included, the entire amount of the local cess of the land comprised in his tenure.

These oess decrees were obtained u/s 41(2), Cess Act, and it is urged that they could not have been obtained unless it had been held that the defendant''s husband was a tenure-holder. For the purposes of the Cess Act the term "tenure-holder" has a very wide meaning. The word "tenure" is defined in Section 4 as including every interest in land, whether rent-paying or not, save and except an estate as defined in the Act, and save and except the interest of a cultivating raiyat. In short, the holder of a tenure, for the purposes of the Cess Act, includes all persons holding any interest in land whether rent-paying or not with certain exceptions.

All that these rent cess decrees show is that the defendant''s husband held an interest in land which made him liable for payment of cess, and they do not establish that it had been held that he was a tenure-holder in the strict sense of the word. The defendant did hold an interest in land which may or may not have rendered him liable to cess; but a mere finding that he was a tenure-holder for the purposes of the Cess Act does not amount to anything more than he held some interest in the land which made him liable for cess. In my view these cess decrees, which apparently were obtained without contest, cannot operate to bar the plaintiff''s claim on principles of res judicata.

The plaintiff is therefore entitled to pos-session of the area of 38 bighas 13 kathas. He does not however claim the structures erected on the land by the defendant and her husband, and the latter should, in my view, be given an opportunity of removing them if they now exist as was ordered in 58 Cal 12354 previously cited. With regard to the remaining 43 bighas of land, Mr. P.R Das on behalf of the appellant has conceded that his claim was bound to fail with regard to the plot of 11 bighas odd which was the subject-matter of the land acquisition proceedings. This land was not in the possession of the defendant at the date of the suit and therefore no claim in possession in respect of it could possibly succeed. With regard to the remaining 8 bighas odd of land, Mr. Das has contended that the learned Subordinate Judge should have ejected the defendant therefrom. The learned Subordinate Judge has found, and in my view rightly, that the defendant''s husband and the defendant had been in possession of this plot for more than twelve years before the suit was brought.

Mr. Das did not seriously contest this finding; but he has contended that as this land abutted On to the plot of 38 bighas 13 kathas which the defendant''s husband was in possession under an agreement to lease, the possession of the defendant was in fact and in law possession on behalf of the landlord plaintiff. It is unnecessary to consider the appellant''s contention upon this aspect of the case, because Mr. Das very properly did not press it and eventually did not ask the Court to reverse the finding of the learned Subordinate Judge with respect to this plot of 8 bighas odd.

In support of the cross-objection, Mr. Majumdar, counsel for the respondent, has urged that the learned Judge was wrong in holding that the plaintiff had established his claim to 22 bighas odd out of the 43 bighas odd upon which the defendant''s husband had encroached.

The learned Sub-ordinate Judge held that there was no evidence that the defendant''s husband was in possession of this 22 bighas odd before the date of the publication of the Record of Rights in 1925. In the Record of Bights the defendant is shown as being in possession of 82 bighas as tenure-holder and this 82 bighas comprised not only the 38 bighas 13 kathas which was the subject-matter of the agreement to lease but also 43 bighas odd which had been: encroached upon. The learned Subordinate Judge has come to the conclusion that there was no satisfactory evidence that the defendant''s husband had been in possession of these 22 odd bighas of land before 1925, and with this view I agree.

With regard to the remaining land encroached upon, there was such evidence. The Court cannot assume from the fact that the defendant was shown in possession of the land in 1925 that he had been in adverse possession for any period of time previous to that year. The only evidence of adverse possession with respect to these 22 bighas of land was the entry in the Record of Rights and that showed adverse possession from the year 1925. Such would not give the defendant a title by adverse possession to this area of land, and that being so, the learned Subordinate Judge was right in giving the plaintiff a decree for possession of the same. The result therefore is that this appeal is allowed in part and the plaintiff is given a decree for possession with respect to the area of 38 bighas 13 kathas as well as the area for which a decree for possession had already been granted.

The defendant is given three months'' time from today to remove the structures if any constructed by her or her husband on the area of 38 bighas 13 kathas. The claim with respect to the remainder of the area of 82 bighas was rightly dismissed and the appeal with respect to that area fails. The cross-objection also fails and is dismissed with costs. The plaintiff will be entitled to proportionate costs in this Court and in the Court below.

Manohar Lall, J.

I agree.