Kally Das Roy vs Lodai Mollah on 29 July, 1881

Calcutta High Court
Kally Das Roy vs Lodai Mollah on 29 July, 1881
Equivalent citations: (1882) ILR 8 Cal 238
Author: Field
Bench: Prinsep, Field


Field, J.

1. The plaintiff in these cases sued a number of ryots for rent. Their defence was substantially this, that no relation of landlord and tenant existed between them and the plaintiff. They alleged that the lands held by them are not situate within Taluq No. 3039, as alleged by the plaintiff, but form a portion of a nim-howla belonging to one Tarini Churn Biswas and situate within Taluq No. 3051. They further said that Tarini Churn Biswas is their landlord, and that they pay their rents to him.

2. The Munsif, in a careful judgment, dealt with the question whether the relation of landlord and tenant exists between the parties, and having carefully examined the evidence, came to the conclusion that this relation has not been established; and he, therefore, dismissed the plaintiff’s suit.

3. The cases then came on appeal before Baboo Nufur Chunder Bhutto the Officiating Second Subordinate Judge of Backergunge, and this gentleman, in a long judgment, which contains a large amount of irrelevant matter expressed in stilted and high-flown language, reversed the decision of the Munsif for reasons which we think cannot be supported. The Munsif, very properly, and in accordance with a number of decisions of this Court, declined to try, under the guise of a suit for rent, a question involving the title to a considerable property. With reference to this course of procedure, the Subordinate Judge says: “Tarini ought to have been a party of his own accord or at the instance of the defendants, as he was directly interested in the subject-matter of the suits,–namely the arrears. The Court itself had, under the circumstances, the power suo motu to make him a defendant under Section 32 of the Procedure Code. But at all events it was the duty and interest of the defendants to move the Court in the matter in order to protect themselves from similar demands of Tarini, in case of an adverse decision and for better making out of their own case primarily.” We think that these observations of the Officiating Subordinate Judge indicate a misconception of the real nature of a rent-suit, as well as a want of acquaintance with a number of cases decided by this Court and published in accepted reports, in which it has been held that, when persons sued for rent set up the title of a third person, such third person ought not to be made a party to the case so as to convert a simple suit for arrears of rent into a suit for the determination of the title to immoveable property. See Biressur Paurey v. Jogendro Chunder Deb 24 W.R. 261; Auluck Monee Debee v. Dino Nath Ghose 24 W.R. 421 and Dayal Chand Sahay v. Nabin Chandra Adhikari 8 B.L.R. 180. In this last case Ainslie, J., said (p. 193): “We do not think it can be contended, that a person who is out for possession, has the right to come to the Court and ask for a decree for rent with the view of bringing in a third party and having tried, under color of a rent-suit, all questions of title between himself and that party.”

4. A suit for the recovery of arrears of rent raises two questions:

I. Does the relation of landlord and tenant exist between plaintiff and defendant?

II. Are the alleged arrears of rent due and unpaid?

I. The first question may have to be decided under one of two possible cases:

(i) Where the plaintiff has let the defendant into possession of the land.

(ii) Where the plaintiff is not himself the person who let the defendant into possession, but claims under a title derived from the person who did.

(i) Now, in the first of these two cases the relation of landlord and tenant may have been created in some one of the following ways:

(a) by written contract; and where there is a written contract, if it be necessary to prove the terms of the tenancy, such written contract must be produced and proved; sea the cases of Brewer v. Palmer 3 Esp. 213 and Ramsbottom v. Mortley 2. M. & S. 445;

(b) by an oral contract;

(c) there may have been no express contract, written or oral, but the relation of landlord and tenant may be inferrible from circumstances: for example, from the payment of rent; from submitting to a distress; see the cases of Panton v. Jones 3 Camp. 372; Allason v. Stark 9 A. and E. 255; Doe d. Harvey v. Francis 2 M. & Rob. 57; Banee Madhub Ghose v. Thakoor Doss Mundul B.L.R. Sup. Vol. 588 and Obhoy Gobind Chowdhry v. Beejoy Gobind Chowdhry 9 W.R. 162.

5. When the case falls under (a), there may be the following defences: The execution of the contract may be denied. The actual execution may be admitted, but it may be contended that the contract is invalid, because it was obtained by fraud, force, undue influence, etc. The defendant may show that the plaintiff’s title has expired, or has been defeated by a title paramount; as for example, that the plaintiff’s tenure has been avoided by sale for arrears of revenue; but the defendant cannot deny that the plaintiff had a title at the time when the defendant was let into possession; see Section 116 of the Evidence Act. The defendant may also plead that he was not put into possession of, or that the plaintiff has evicted him from, the land demised or a portion of it, or he may show that the demise was for a term which has expired, and that the occupation has been given up.

6. When the case falls under (b) the defendant may deny the contract, or may set up its invalidity, or show that the plaintiff’s title has expired, or been defeated; or may allege that he has never been put in possession of the land demised, or that he has been evicted by his lessor; or may allege that the tenancy has been determined.

7. When the case falls under (c), the defendant may deny the circumstances from which the plaintiff alleges that the tenancy is inferrible or has been created by implication. He may show that plaintiff’s title has expired, or been defeated; may allege that he has been evicted by the plaintiff, or that his occupation has been determined by relinquishment.

8. The questions raised by these pleas, where the plaintiff originally let the defendant into possession of the land, are questions with which the plaintiff and defendant only are concerned and no third party claiming a title adverse to the plaintiff can properly be made a party to the trial of these questions.

(ii) Let us now turn to the class of cases where the plaintiff’s title is derivative. The following are the most usual ways in which it is derived:

(a) by assignment, including gift, sale, devise, lease;

(b) by inheritance, including adoption amongst Hindus.

9. As between the defendant and the person from whom plaintiff’s title is derived, the relation of landlord and tenant may have been created in any of the ways specified under head (i); and therefore the defendant may make any of the defences which have been specified above under this head (i). The observation just made as to making a person claiming a title adverse to the plaintiff a party to the case, is here equally applicable where some one or more of these defences only are set up, and there is no denial of the facts which constitute the derivation of the plaintiff’s title. But it is clear that, in cases falling under this head, there may be a further defence; there may be a denial of the facts which constitute the derivation, or denial of the assignment, or of the adoption, or of the validity of either; or of the plaintiff being the heir of the original person from whom he professes to derive title by inheritance. It is clear that it is only as regards this further matter of defence that the rights of third parties can come into question. The effect of an assignment, or of an adoption, or of a claim founded on inheritance, may be to deprive of the property, and so of the rents and profits, of some other person who, but for such assignment or adoption or claim founded on inheritance, would be entitled thereto. This class of cases may be further divided into (a) cases where the defendant has attorned to the plaintiff; and (b) cases where the defendant has not attorned to the plaintiff’. (a) Where the plaintiff claims by a derivative title, and the defendant has attorned to him, the defendant is not thereby stopped from showing that the title is really not in the plaintiff’ but in some other person: see the cases of Rogers v. Pitcher 6 Taun. 202; Claridge v. Mackenzie 4 M. and G. 143 and Gregory v. Doidge 3 Bing. 474. In this last case a person had occupied lands under A. Upon A’s death this person entered into an agreement to pay rent to D, and paid one shilling as an acknowledgment of D’s title, being ignorant that D had no title to the property. It afterwards turned out that D had no title, and it was held, that such person might show in answer to a suit for rent that D had really no title. Ordinarily, a tenant who had attorned would not set up this defence unless some person had satisfied him of a better title and prohibited him from paying rent to the plaintiff’. There is no plausible reason why this third person should be made a party to the suit for rent, and it is really for his own interest that he should not be a party. If he is a party, he will be bound by the adjudication upon the question of title, and this adjudication may be based upon scanty materials and insufficient investigation, which are not uncommon when the subject-matter of the claim itself is inconsiderable. If he is not a party, he has the chance of the tenant’s plea being successful, and so of himself stepping into the place of landlord without personal litigation. If the tenant’s plea is unsuccessful, he can litigate the question of title himself with better preparation and with experience gained from the contest at which he looked on without being a party. (b) Where there has been no attornment, the plaintiff must prove his title as a condition precedent to establishing the relation of landlord and tenant between himself and the defendant; and if there be none of the other defences already referred to, this may be the only point to be decided. In England this constantly happens in actions for use and occupation, which resemble in all essential particulars suits for rent in these provinces. I do not find that persons who claim adversely to the plaintiff have been made parties to these suits, or that such a course has even been contended for: see the cases of Hickman v. Nachin 4 H. and N. 716; Fursdon v. Clogg 10 M and W. 572; Cornish v. Scarerl 8 B. and C. 471; Phillips v. Pearce 5 B. and C. 443; Steele v. Mart 4 B. and C. 272; Rawson v. Eicke 7 A. and E. 451 and Selby v. Browne 7 Q.B. 620. In some cases the plaintiff’s title may be so clear, and the defence may be so palpably obstructive and unfounded, that the Court will be justified in dealing with the question of title in the rent-suit and as between the plaintiff and defendant. Again, there may be cases in which this question of title, is raised bonâ fide necessitating lengthy and intricate inquiries and involving property worth a large amount, while the actual matter in dispute may be only a few rupees. Section 28 of the Code of Civil Procedure enacts, that “all persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative, in respect of the same matter.” Now let A be the person claiming by a derivative title an estate and the right to receive the rent thereof; let B be another bonâ fide claimant; and let C be a tenant holding a jamma in the estate. We assume that C has never attorned to A. In order to entitle A to recover rent, he must prove his title in the rent-suit. Now, if B is not made a party to this suit, any decree therein against C will not affect B. The remarks already made as to the advantage to B of watching the rent-suit and awaiting the result are here equally applicable. B cannot be injured by adopting this course, for the decree against C does not affect him; and if he afterwards recover the estate in a suit brought for that purpose, he will receive in the shape of mesne profits any rent which A may have recovered from G under the rent-decree. No doubt A and B may both be made defendants under the provisions of Section 28: but these provisions are not imperative. If the property in dispute is worth some thousands or lacs of rupees, and if B is made a party, there will be, in a suit for rent involving a few rupees only, a trial of the question of title to property of large value; and, as the law now stands, if this question of title is decided in the rent-suit, B being made a co-defendant with C, the decisions will have the effect of res judicata between A and B; and this decision may be had upon a court-fee stamp of small amount and before a judicial officer who would not have jurisdiction to try the title to the property in a suit instituted with this direct object. As has been already said, the provisions of Section 28 are not imperative; they allow a discretion, and in a case of this kind, both in the interests of the Government revenue and for the convenience of a proper adjudication, it is much better that the question of title should be tried in a suit directly framed and brought for this purpose.

10. There is a class of cases very common in this country,–i.e., where rent-suits are brought merely for the purpose of asserting or making a title to the land occupied by ryots. A and B are proprietors of adjoining estates. A claims some lands as part of his estate; B, on the other hand, asserting that these lands belong to his estate. Instead of at once suing B and raising the question of title, A commences operation by suing for rent the ryots in occupation of the disputed lands. If these lands have always formed part of B’s estate, the ryots ought to have no difficulty in showing that they were not let into possession by A, or that they never attorned to A. If, however, A succeeds by fictitious kabuliats and manufactured evidence, B, if not a party to the rent-suits, is not affected and can prove his title by independent evidence, and he is much wiser to hold aloof from the rent-suits than to run the risk of an adverse decision on the question of title, which will forever conclude him, although arrived at upon scanty materials and insufficient enquiry. Where the disputed lands are new chur, and the ryots who have occupied and cultivated have not attorned, the proprietor who first sues them for rent will have to prove his title, and his adversary has the advantage of watching and preparing himself. In this last class of cases, for reasons already given, it is not desirable that the essential question of title as between proprietors claiming adversely should be raised and tried in a petty rent-suit.

II. Then, as regards the other question which may be raised in a rent-suit.,–namely, is the rent claimed due and unpaid? the defences upon this issue may be:

(a) payment;

(b) set-off;

(c) deposit under the provisions of the Rent Act;

(d) limitation, &c.;

and it is clear that, in order to the trial of any of the questions so raised, it is unnecessary to make third persons parties to the suit.

11. Under these circumstances, we think the suits for rent should not be complicated by bringing in third persons who claim adversely to the plaintiff, and raising, as between such third persons and the plaintiff, questions of title which involve not merely the right to a small amount of arrears of rent, but also the right to a large and valuable property. In this case it appears that there were alleged to be certain kabuliats said to have been executed by the defendants in the plaintiff’s favour. These kabuliats were not produced; and as to their non-production, we think that the remarks made by the Munsif are reasonable and proper. Then the Subordinate Judge remarks upon the fact of the Munsif not having allowed a registered document to be proved for the purpose of showing that the boundaries of the plots given therein described those plots as belonging to the plaintiff’s share of the taluq. We think that the Munsif was here correct, and that the Subordinate Judge was in error in supposing that this document, being a document between third parties, could be evidence against the defendants under Section 7 of the Evidence Act. With reference to the observation in the judgment of the Subordinate Judge that it is the boast of the Narail Baboos to bring refractory ryots to their senses, we are not shown that this question was raised, or that there is any evidence on the record to establish this fact; and we think that an observation of a personal nature like this is out of place in the judgment of a Court of justice. The Subordinate Judge having relied upon a considerable portion of documentary evidence, to a part of which he has assigned much greater weight than it deserves, and part of which, for example the registered kabuliat, is inadmissible in evidence, then passes on to consider the effect of the oral evidence. He commences thus: “Then came a whole host of respectable witnesses, who proved payment of rents by the defendants in 1280 and 1281 partly.” Having examined this evidence, he concludes his judgment thus: “For all these reasons taken together I hold that the plaintiff started a strong primâ facie case which the defendants were bound to rebut, but did not think it fit to rebut by proving their own case.” It appears to us that the conclusion at which the Subordinate Judge here arrives is a conclusion based upon the whole of the evidence, documentary and oral, taken together; and as we have pointed out that part of this documentary evidence has been improperly received, it follows that a conclusion based upon materials an essential portion of which was irrelevant cannot be sustained. We must, therefore, remand this case in order that the lower Appellate Court may come to a conclusion upon the evidence, excluding that which we have shown to be irrelevant, upon the question whether the relation of landlord and tenant has been established as between the parties to these suits. We desire to say that it lies upon the plaintiff not merely to start a strong primâ facie case, but in the first instance to bear the whole burden of proof. Having regard to the serious errors committed by the Officiating Subordinate Judge, we direct that these appeals upon remand be taken up and disposed of by the District Judge. The costs will abide the result.

Prinsep, J.

12. I agree in remanding this case for retrial by the District Judge, because there has been a mis-trial by the Subordinate Judge both in his manner of dealing with the case and in admitting as evidence what is not legal evidence.

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