JUDGMENT
Kanhaiya Singh, J.
1. This is an appeal by the plaintiffs from the decree dated 5-3-1949, of Mr. B. S. Tripathi, Additional Subordinate Judge, affirming the decree dated 24-7-1948, of Mr. M. M. Sahay Munsif. The suit was brought by the plaintiffs as raiyats for
eviction of the defendants from 1,66 acres of land
comprised in khata No, 12 in village Idalhatu
substantially on the ground that the defendants
were under-raiyats and had refused to vacate the
land and give the plaintiffs khas possession even
on service of notice to quit.
The defendants resisted the suit on the ground that they had acquired permanent occupancy right in the suit land by adverse possession. Their additional plea was that the suit was incompetent as they had not been given any notice to quit the land.
2. The learned Munsif held that the defendants had not acquired any occupancy. right in the suit land. He further held that the question of acquisition of any tenancy right in the land by adverse possession did not arise as the defendants in the capacity of under-tenants could not prescribe against the landlord. He further found that there was no demand for possession, and after so holding he dismissed the suit.
3. On appeal, the learned Subordinate Judge held that the defendants had acquired a permanent tenancy right in the suit land by adverse possession and set aside the finding of the learned Munsif to that extent. He, however, held, in agreement with the learned Munsif, that there was no demand for possession of the land by the plaintiffs and, therefore, the suit was not maintainable. He accordingly affirmed the decree passed by the learned Munsif and dismissed the appeal.
4. Before I deal with the questions raised in this appeal. I would like to dispose of one short point taken by the respondents. One of the contentions of the respondents was that by reason of Section 139, Chota Nagpur Tenancy Act the jurisdiction of the Civil Court was barred. This section provides, inter alia, that all suits and applications under this Act to eject any tenant of agricultural land or to cancel any lease of agricultural land shall be cognizable by the Deputy Commissioner & shall be instituted and tried or heard under the provisions of this Act, and shall not be cognizable in any other Court, except as otherwise provided in this Act. This section has no application to the present case for two reasons, first, as I shall show below, the defendants are under-raiyats of the. disputed land.
There is no provision in the Chota Nagpur Tenancy Act for eviction of an under-raiyat. Section 139 postulates procedure for institution and trial of the cases. If the Chota Nagpur Tenancy Act does not contain any provision as to how a suit will be instituted and disposed of in order to eject an under-raiyat from his land, Section 139 of the Act does not come into play at all. The jurisdiction of the Civil Court is ousted only when some special provision for a particular kind of suit has been made in the Chota Nagpur Tenancy Act.
If there is no such provision, the aggrieved party cannot be said to be without remedy and, therefore, the remedy must be sought in the civil Court. Section 139 emphasises that suits and applications which are not entertainable in the Civil Courts must be suits and applications under the Act, that is, under the Chota Nagpur Tenancy Act. A suit to evict an under-raiyat cannot be said to be a suit under the Chota Nagpur Tenancy Act for the simple reason that this Act does not contemplate the institution of such a suit. Necessarily, therefore, the Civil Court must have jurisdiction over such a suit.
Secondly, this was not a pure suit by a landlord for ‘ejectment of a tenant, in this suit, the plaintiff claimed declaration of title and possession, and a suit of this nature does not fall under
the Chota Nagpur Tenancy Act. A Full Bench of the Patna High Court held in the case of Pokhan Dusadh v. Mt. Manoa, AIR 1937 Pat 117 (A) that Section 139 (5), Chota Nagpur Tenancy Act bars the Civil Court from entertaining a suit regarding a matter cognizable by the Deputy Commissioner by way of application and that, so far as recovery of possession of a tenancy is concerned, by no provision does it bar the Civil Court from entertaining a suit for a declaration of title to and consequent recovery of possession of a tenancy.
The same reasoning applies also to a case failing under Section 139 (4), Chota Nagpur Tenancy Act. There is no distinction in principle between Clauses (4) and (5) of Section 139. One provides for suits and applications for ejectment of a tenant and the other for the ejectment of the landlord. Any way, T. K. Prasad appearing for the respondents assumed for the purpose of this appeal that the Civil Court had jurisdiction.
5. On behalf of the appellants, Mr. L. K. Choudhury argued that the respondents did not possess the land for the statutory period of twelve years in order to acquire indefeasible right therein. The undisputed facts are that the plaintiffs orally settled the disputed land on adhbatai (half produce rent) with Falgu Munda, the ancestor of the defendants. The evidence does not disclose the date or year of the settlement.
It is, however, common ground that this settlement was made long before the Revisibnal Survey and in the Revisional Survey record of-rights which was finally published on 17-6-30, possession of Falgu Munda in respect of this land is recorded. In the khatian his possession is stated as Be Aeeni c vkbZuk In other words, his possession was illegal. There is further no dispute that Falgu Munda remained in possession of the land on payment of half produce rent during his life-time, and after he dies, his son, Paduman, entered into possession of the land and remained in possession on payment of similar rent to the plaintiffs.
On the death of Paduman, the land devolved upon the defendants. Mt. Sulochana Mundain and Ramkristo Munda, the widow and son, respectively, of Paduman. It is common ground that this settlement was made before the Revisional Survey which was completed some time in June 1930. Falgu Munda and his son and grandson remained in quiet enjoyment of the land without interruption from the landlord from year to year on payment to the plaintiff-landlord of half the produce of the land by way of rent.
The question is since how long they have been in possession of the disputed land. The evidence is that Falgu Munda obtained the settlement of the disputed land long before the Revisional Survey. The date and year of the settlement are, however, not disclosed, nor is their ascertainment necessary in the circumstances of the case. It is undeniable that Falgu Munda and his son grandson have remained in continuous possession of this land at least since after 17-6-1930, that is to say, since after the publication of the record-of-rights.
Thus, they had cultivated this land as adh-bataidar continuously for nearly 15 years before the institution of the suit in 1946. On the strength of this continuous possession for more than, the statutory period, the learned Subordinate Judge held that the defendants had acquired permanent tenancy right therein.
The contention of Mr. L. K. Choudhury has been that the right which Falgu Munda had acquired in the disputed land by prescription was the right of an under-tenant, and since the tenancy of an under-raiyat under the Chota Nagpur Tenancy Act is not heritable and transferable, his son Paduman did not acquire any valid title in the
disputed land on the death of his father and, that, therefore, the possession of Padumari was that of a trespasser, and since Paduman had not remained in adverse possession of the land for the statutory period of twelve years prior to his death, he had not acquired any right in the disputed land, and further that for similar reasons the defendants were also trespassers, and as the possession of the disputed land for twelve years was not complete prior to the institution of the suit, they were in the eye of law mere tenants at will.
This argument proceeds on the assumption that the defendants could not avail themselves of, and could not tack their possession on to, the possession of their ancestors Paduman and Falgu. It is true that Falgu, his son and grandson were trespassers. The Chota Nagpur Tenancy Act bars permanent settlement of a land by a raiyat. Omit-ting the portions not relevant to the present enquiry; Section 46, Chota Nagpur Tenancy Act enjoins that no transfer by a raiyat of his right in his holding or any portion thereof by lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years, shall be valid to any extent.
Since the term of the lease had not been fixed and Falgu Munda admittedly continued in possession of the land without objection for more than five years on payment of rent, there was an implied lease of a raiyati interest for more than five years. At any rate, there was in this transaction a possibility of the term exceeding five years. The settlement with Falgu Munda, therefore, was invalid from its inception, and accordingly his possession was described as illegal even in the Survey record-of-rights. As such, the settlement is not valid even for the permissible period of five years.
Under Section 46, Chota Nagpur Tenancy Act, any settlement for a term beyond five years is not valid to any extent, that is not even for a period of five years, the maximum period of lease permissible thereunder. Any settlement of raiyati land in contravention of the provisions of Section 46 is void ab initio. When Falgu Munda was inducted on to the land under an invalid document, his possession of the land became adverse to the owners of the land, namely, the appellants, from the very beginning of his possession,
It is well-settled that possession under a void lease is illegal and, therefore, adverse to the real owner from the very beginning. It is indisputable, therefore, that Falgu Munda was adversely in possession of the disputed land. Similarly, the possession of Paduman and the defendants were adverse to the plaintiffs. The only material question is whether the different periods of possession during which Falgu, his son and his grandson were and are in adverse possession of the land can be added together and utilised by the defendants to make up the statutory total period of adverse possession, namely, twelve years, as provided by Article 144, Limitation Act.
By Sub-section (4) of Section 2, Limitation Act ‘defendant’ includes any person from or through whom a defendant derives his liability to be sued”. Similarly, by Section 2(8) ‘plaintiff’ includes any person from or through whom a plaintiff derives his right to sue”. By Article 144, Schedule I, Limitation Act, the period for instituting a suit for possession of immovable property or any interest therein is twelve years from the time “when the possession of the defendant become adverse to the plaintiff’.
Article 144 read with Sub-sections (4) and (8) of Section 2, Limitation Act shows that the expression “the possession of the defendant” in Article 144 includes also the possession of the person from or through whom the defendant derived his liability to be sued. In this case, evidently, Paduman derived
his interest in the disputed land from his father Falgu with whom the original settlement had been made, and similarly the defendants who are the son and widow of Paduman derived their interest from and through Paduman.
Falgu was liable to be sued by the plaintiffs for eviction because his possession of the disputed property was unauthorised. On his death, this liability devolved upon his son Paduman and he without objection entered into possession of the disputed land, and on his death, the same liability came to the defendants. For the purposes of computing the statutory period of limitation to Judge whether or not a perfected right had been acquired, the periods of possession of Falgu, his son, and grandson can, therefore, be brought together by virtue of Section 2 (4) of the Act.
It follows from the above and it is also well established that periods of possession of a series of independent trespassers cannot be added together. In this case, Falgu, his son and grandson cannot be called independent trespassers. There is a high authority in support of this proposition.
In the case of Secy. of State v. Debendra Lal Khan, AIR 1934 PC 23 (B), the Privy Council held that the periods of adverse possession of two or, more trespassers can be tacked together if one trespasser derived his interest from the other. Therefore, the defendant could rely upon the possession of the disputed land by Paduman and Falgu to complete the statutory period of twelTe years. It is apparent from the above that they have been in continuous possession of the tend for upwards of twelve years. They will, therefore, acquire an absolute right in the land by adverse possession.
In the case of Maharaj Singh v. Budhu Char-mar, ILR 30 Pat 964 : (AIR 1952 Pat 46) (C) a Division Bench of this Court held that under Section 46, Chota Nagpur Tenancy Act, a lease for a period exceeding five years is prohibited and the raiyat who leased out his holding under an invalid lease was certainly entitled to sue to recover possession of his holding, and if. he did not bring his sutt within twelve years from the date on which lessee was inducted on the land under the invalid tease. he could not recover possession and the alienee might acquire interest in the land by adverse possession and the suit would be barred under Article 144, Limitation Act, 1908. It must be held, therefore, that the defendants had acquired a tenancy right in the disputed land.
6. T,he next question is what interest the defendants had acquired In the land by adverse possession. The plaintiffs described them as tenants at will. Mr. T. K. Prasad, however, disputed this position and contended that they had acquired a permanent tenancy rignt by adverse possession. He did not concede that the defendants were shlfc-mi raiyats. According to him, the status of the defendants was not that of an under-raryat. Hla contention does not appear to be well-founded.
The pleadings and the evidence on the record indicate quite clearly that the right which Falgu Munda and his successors-in-interest were prescribing for was the right and interest of an under-raiyat. It is admitted that they were paying all along the adhbatai rent to them. It is nobody’s case that they were prescribing the entire Interest in tile land, namely, the interest of the raiyat. The right which they acquired by adverse possession cannot be regarded as other than the right of an under-raiyat.
As will appear from Clause (3) of Section 4, Chota Nagpur Tenancy Act, under raiyats are tenants holding, whether immediately or mediately, under raiyats. Falgu Munda and his successors-in-interest were holding the land under
ralyats. Therefore, they cannot but be regarded as under-raiyats of the disputed land’ They are not as contended by the plaintiffs, tenants at will. This contention was rested on the fact that Falgu, Paduman and the defendants were trespassers, independent of one another, which, as held above, is not the correct position.
7. It was open to the landlord, namely, the plaintiffs, to sue for recovery of possession either on the death of Falgu or on the death of Paduman. They did not choose to do so and now the defendants have by virtue of their possession for more than the statutory period acquired a tenancy right in the land and the right of the plaintiffs thereto is extinguished, and they are, therefore, not entitled to succeed in their claim.
8. Apart from this, there is one vital defect. Both the Courts have concurrently held that the tenancy of the defendants was not determined by the plaintiffs by a notice, nor was there any demand for possession. On this finding, they held further that the suit was not maintainable. The contention of Mr. L. K. Choudhury has been that no notice was necessary since the plaintiffs (defendants?) were mere tenants at will. As held above, they were not tenants at will but under-raiyats of the disputed land.
In the unreported case of Bholwa Dusadh v. Mt. Hulsi, S. A. No. 2143 Of 1947, D/- 21-9-1948 (Pat) (D), in which the defendants were under-raiyats. Shearer J., sitting singly, held that notice was necessary. In another unreported case of Raghunandan Prasad v. Hadu Munda, S. A. No. 1603 Of 1948, D/- 20-11-1952 (Pat) (E), Imam T. (as he then was) held that even in the case of tenancy at will a demand of possession or intimation to the tenant determining his tenancy was prerequisite to the institution of a suit for ejectment,
Assuming that the defendants were mere tenants at will, a notice to quit will be necessary, to afford the plaintiffs a cause of action for the suit. A statement of law on the question of notice will be found at page 120 of Halsbury’s Laws of England, Vol. 20, Edn. 2:
“A tenancy at will is determinate by either party on his expressly or Impliedly intimating to the other his wish that the tenancy should be at an end. But until such intimation the tenant is lawfully in possession, and accordingly the landlord cannot recover the premises in an action for recovery of land without a previous demand of possession or other determination of the tenancy …………. ”
In either case, therefore, a notice to quit or demand of possession was necessary for the institution of the suit. Thus, on the findings of the Courts below that there was no notice determining the tenancy nor any demand of possession, there was, therefore, no cause of action for the Institution of the present suit for ejectment of the defendants. On this ground alone, the suit must be dismissed.
9. From any point of view, there is no merit in this appeal, and it is accordingly dismissed with costs.
Rai, J.
10. I agree.