Authored By : William Comer Petheram, S.C. Ghose

William Comer Petheram, C.J. and S.C. Ghose, J.

1. This appeal arises out of a suit brought by the plaintiffBaboo Kali Krishna Tagore, who is the zamindar of pergunnah Edilpore, againstGolam Ally, the defendant, to eject him from certain lands situate in thatpergunnah; and for a declaration that the defendants allegation made in aprevious suit between the parties, that he, the defendant, had a permanenthowla interest in the lands is untrue. The plaint sets forth that the lands insuit, which are within a property named Haturea, were leased out to thedefendants father, one Mahomed Ashak in 1234 (1827) as a kursa or ordinaryryoti tenure to be held by him as a tenant-at-will; that the said tenure wasnot granted for agricultural purposes; that subsequently, in the years 1250(1843) and 1264 (1857) respectively, two dowls or kabuliyats were executed bythe said Mahomed Ashak in favour of the plaintiffs father, Baboo Gopal LalTagore, in respect of the said lands at enhanced rents, the rent reserved bythe last dowl being Rs. 421-7-10 ; that subsequently, in a suit brought by theplaintiff in 1870 for rents of the years 1274 to Srabun 1277 (1867 to July1870), the defendant set up and filed a permanent howladari lease, but at thesame time admitting that he had been holding the land at the rent alleged bythe plaintiff; that the Court which decided the suit did not consider itnecessary to go into the question of the validity of the howla set up by thedefendant, but decreed the claim for rent, there being in fact no dispute as tothe amount thereof; that subsequently, in 1284 (1877), the defendant changedthe features and character of a portion of the lands by digging tanks withoutthe plaintiffs knowledge, which acts were contrary to the express stipulationsof the dowl of 1264, and the custom of that part of the country; that thereupona notice to quit was served upon the defendant on the 11th Assar 1289 (1882),requiring him to relinquish possession of the lands within fifteen days. Thesuit was brought upon the basis of the said notice to eject the defendant fromthe land hitherto held by him, and also to have it declared that the defendantwas not entitled to the howla which he claimed.

2. The answer to this suit was that the notice was bad inlaw; that it was neither sufficient nor reasonable; that the dowls set up bythe plaintiff were untrue; that the excavations complained of in the plaintwere made sometime before the year 1284 from time to time, and that theplaintiff acquiesced in these acts; that in the year 1184 (1777) a remotepredecessor of the plaintiff, namely, one Jaswant Rai, who was then entitled tothe whole of the mouzah Haturea, granted to the defendants grandfather, SheikhBomai, a permanent howladari pottah for 9 drones 14 kanies and odd of lands ata fixed rental of Rs. 421-7-10; that this rent had ever since been pai to theplaintiffs father and subsequently to the plaintiff; and that the fact of thishowla was set up more than 12 years ago with the knowledge of the plaintiff anhis father, the late Baboo Gopal LalTagore; and that, therefore, the plaintiffwas now barred by limitation from questioning the howla. The written statementfurther contended that the meaning of the word "kursa" as given inthe plaint was incorrect; and that the tenants of pergunnah Edilpore, who hadkursa rights, could acquire rights of occupancy by occupation for more than 12years; that even upon the dowls filed by the plaintiff and the statementscontained in the plaint it could not be said that the defendant was atenant-at-will; and that, further, having continued to possess and enjoy thelands at a progressive rent for the reclamation of jungle, and withoutinterruption from generation to generation, from before the PermanentSettlement, a right of occupancy had accrued to the defendant within, orsubordinate to, the superior howladari interest.

3. The Court below has held that the person whose signaturethe notice to quit bears had no authority whatsoever to give such a notice;that the defendants tenure is at least a tenancy from year to year; and,therefore, a notice given in the middle of the year, requiring him to quitwithin fifteen days, was not a reasonable and sufficient notice, and that,therefore, the plaintiff is not entitled to eject the defendant in this suit.

4. Upon the matter of the excavation complained of in theplaint, the Subordinate Judge has found that the tanks were dug many years agowithout any let or hindrance on the part of the zamindar, and has accordinglyheld that no ground for ejectment on this score is made out.

5. The title of the plaintiff to eject having failed, theCourt below had next to consider whether or no the plaintiff was entitled todeclaratory relief in respect of the howla set up by the defendant. Upon thisquestion the Subordinate Judge has found that the lease set up by thedefendant, that is to say, the howladari pottah of 1184, is a forged document,but that the existence of the howla, though not proved to be held at a fixedrent from before the Permanent Settlement, is made out by the various rentreceipts produced by the defendant, which described the tenure as a howlatenure, and that the said receipts were granted apparently with the knowledgeof the naib and Other superior officers of the plaintiff; and it must,therefore, be inferred that the plaintiff and his father were aware of the facethat a howladari title had been set up many years ago, that is to say, morethan 12 years ago; and, therefore, both upon the ground that the defendant hasmade out that he has a howla right in the property in question, and also uponthe ground that the said howla had been set up more than 12 years before suit,with the knowledge of the zamindar, the plaintiff is not entitled to question,and is, in fact, barred by limitation from now questioning the said howla. Asregards the two dowls of the years 1250 and 1264 produced by the plaintiff, ashaving been executed by the defendants father, Mahomed Ashak, the lower Courthas found that they are untrue, and have been manufactured on the occasion ofthe rent suit of the year 1870. Having come to these conclusions, theSubordinate Judge has dismissed the suit with costs.

6. The plaintiff has appealed to this Court; and we mighthere observe that no contention has been raised before us as to the noticeserved upon the defendant being valid in law, nor that the plaintiff isentitled to eject by reason of the excavations made by the defendant.

7. The points that have been raised by the learned Counselfor the appellant are: (1) that the setting up by the defendant of a permanenthowladari right in the property in question amounted to a denial of theordinary rights of the zamindar; and, therefore, the defendant must be taken tohave forfeited his tenure; and the plaintiff is, therefore, entitled to ejectthe defendant without any previous notice to quit; (2) that the foundation uponwhich the howladari title was based having failed, namely, the lease of the year1184 having been found by the lower Court to be a manufactured document, theSubordinate Judge ought, consistently with his finding, to have found that thedefendant was entitled to no howladari interest in the lands; (3) that the rentreceipts relied upon by the lower Court have not been proved according to law,and are not genuine; (4) that there is no proof whatsoever that, as a matter offact, the howladari lease of 1184 was set up at any time with the knowledge ofthe plaintiff or his father previous to the suit of 1870, and therefore theplaintiff is not barred by the law of limitation from now questioning the saidhowladari title; (5) that the dowls produced by the plaintiff ought to havebeen found by the lower Court to be genuine; and lastly, that even if theplaintiff be not entitled to eject the defendant, he is, at any rate, entitledto have a declaration to the effect that the howladari title set up by him isuntrue.

8. The learned Advocate-General for the respondent, in thecourse, of his arguments in support of the decree of the Court below,contended, among other matters, that the plaint disclosed no cause of action,and that the Court below ought to have found that the howladari lease of 1184was a genuine instrument.

9. Upon the arguments raised before us, it would appear thatthere are two questions of law, and three questions of fact involved in thisappeal.

10. The questions of law are: (1) does the plaint disclose acause of action; and (2) whether, in the absence of a notice to quit, is theplaintiff entitled to eject

11. The questions of fact are: (1) whether the defendant isentitled to the howla which he claims; (2) whether the howla was set up morethan 12 years ago with the knowledge of the plaintiff or his father; and (3)whether the defendants father executed the dowls produced by the plaintiff.

Miss tiff 701-702

.

Kali Krishna Tagorevs. Golam Ally (07.07.1886 -CALHC)