Authored By : Thomas William Richardson, Lancelot Sanderson

Thomas William Richardson, J.

1. This appeal is an incident in long and wearisomelitigation between the parties. In the present case the plaint was filed in1910. The claim was for arrears of rent of certain lands for the years 1314 to1316 B.S. and part of the year 1317 (part of 1907 to part of 1910). The claimso far as it related to the lands now in question failed in the trial Court butsucceeded in the lower Appellate Court in virtue of a judgment pronounced bythe District Judge on the 10th June 1915. On review the learned Judge on the26th January, 1916, modified his decree. But the judgment and decree on reviewwere set aside by the High Court and then the present appeal was taken by theprincipal defendants (the defendants Nos. 1-4) from the judgment of 10th June,1915

2. The appellant-defendants (to whom I shall referhenceforth as the defendants) are admittedly the tenants of certain landsappertaining to the village of Kalikapur in the District of Burdwan. Theplaintiffs are the proprietors of a 4 annas share of that village. The tenancyis an old one. At its original creation, it comprised lands abutting on theRiver Bhagirathi. The river gradually receded to the north or west. Thedefendants followed the river and took possession of the chur, or dryalluviated land, as it formed. The complications which have ensued arelabyrinthine. The case before us must be decided with reference to the factsfound or admitted, which are properly open for our consideration in secondappeal.

3. There appears to have been litigation between the partiesor their predecessors so far back as 1875 and in 1876a compromise was arrivedat whereby the tenants agreed to pay rent at the rate of Re. 1 per Bigha perannum for the chur lands that there are and those which shall in future form ascontiguous accretions to the aforesaid karari 20 Bighas of land appertaining tothe mal portion of the six annas share of the said mouzah Kallai (orKalikapur)." It appears that the share of the plaintiffs or theirpredecessors was known as the six annas share. In any case it is not disputedthat the compromise is binding on the parties according to its true effect.

4. In 1894 there was further litigation. Suit No. 7 of thatyear was a rent suit instituted by the plaintiffs against the defendants. Itwas tried along with two other rent suits against the defendants being suitNos. 15 and 16 of the same year, instituted by co-sharers of the plaintiffs. Inthe course of those suits two judgments were delivered by the High Court. Thediscussion before us turned largely on the effect of those judgments and thedecision was ultimately arrived at

RiverF Bhagirathi

(Cha) (Chha)

River Bhagirathi D(Gha) E (Uha) River Bhagirath

C-ga

B-Kha

A-Ka



5. The above plan shows how the belt of land in theoccupation of the defendants may be conveniently subdivided or plotted. Thelettering follows that adopted by the District Judge in the judgment appealedfrom.

6. A (or Ka) represents that part of the original holding inKalikapur which has not been affected by the action of the river.

B (or Kha) is the remainder of the original holding. Afterbeing washed away it reformed and is known as the karari chur comprising the 20Bighas mentioned in the compromise of 1876.

C (or Ga) is the original bed of the river.

D (Gha) E (Una) ["represent lands which were for merlyon the

F (Cha) & G (Chha) further or Nadia side of the river.

6. It is now disputed that plots D and E (and possibly asmall part of plot G) were surrendered by the plaintiffs to the Government whoclaimed them as reformations in situ of certain Government estates. In thisappeal the plaintiffs make no claim for rent in respect of these plots. Asregards their right to rent in respect of plots A, B and C there is also nocontroversy. At this stage at any rate the dispute is confined to plots F andG.

7. At the outset it is clear that the plaintiffs are not infact entitled to these plots, F and G, as an accretion to their lands inKalikapur. Plot C may have accreted to those lands but F and G are separatedfrom C by the intervening Government estates. Further, the fact is and must bethat F and G are reformations in situ of estates which formerly lay on theNadia side of the river. Speaking of the four plots D, E, F and G the DistrictJudge says at the commencement of his judgment:

Further north are the reformed lands of the touzis under theNuddea Collectorate. The fact is not seriously denied and indeed every surveyorwho has been to the spot has found that these are lands of the touzis under theNuddea Collectorate.

8. The plaintiffs therefore had to fallback on the principleformulated in S. 116 of the Evidence Act, that a tenant is estopped fromdenying his landlords title and it was argued on their behalf that thequestion so raised was concluded against the defendants by the judgments of theHigh Court in the suits of 1894.

9. Before going further it is desirable to say that theDistrict Judge incidentally refers to suits brought in 1398 and 1902 byco-sharers of the plaintiffs against the defendants and that the judgments inthose suits have not been placed before us.

10. In the suits of 1894 plots E and F correspond to thepresent plots F and G and plots G and H to the present plots D and E. The casewas argued before us on that footing, and in the judgment of the AdditionalDistrict Judge, dated 28th March, 1903, to which some reference is made in thesequel plots E and F are described as lying to the north of plots G and H. Forthe sake of clearness therefore when quoting from the judgments in those suits,I shall alter the (sic) so as to make it correspond with the present Lettering.

11. The first and governing judgment of the High Court wasthat of Rampani and Pratt, JJ., dated 29th June, 1900. The following passagewas relied on:

In cases like the present, when the chur was lying open tothe cultivation of the tenant and when in accordance with the plaintiffspermission the defendant took possession of that chur and cultivated it withoutany objection, obstacle or opposition, we think that it is not right that theJudge should say that this is not the manner in which a landlord should put atenant in possession of any land who wants to take advantage of S. 116 of theEvidence Act. It seems to us that it is a sufficient way for a landlord to puta tenant into possession unless, the tenant requires some further assistancewhich does not appear to have been the case in the present instance.

12. Then the learned Judges continue:-

We therefore set aside the decision of the District Judgeand remand the case to him for disposal of the question of the chur land inaccordance with the above instructions, that is to say, bearing in mind thatthe defendants are estopped from denying the plaintiffs title as to plots D,E, F and G.

13. The judgment does not end there but so far what thelearned Judges decided was in effect that the plaintiffs had at leastconstructively let the defendants into possession of the whole chur. Thedefendants entered with the authority of the plaintiffs and there was nothingin the mode in which the defendants took possession to exclude the operation ofthe doctrine of estoppel.

14. If I may say so, I agree but there still remains thequestion whether the decision so understood concludes the defendants in thepresent suit. A later passage in the judgment shows that the learned judgeswere dealing with the period before plots D and E had been surrendered to theGovernment.

15. After referring to a suggestion that a small portion ofF and G had been taken possession of by the Government and leaving it open tothe defendants to prove that they had been evicted therefrom by titleparamount, the learned Judges proceeded:-

Then with regard to plots D and E, it has been similarlyargued by the learned counsel for the defendant that in this case also therehas been eviction by title paramount. We do not see that this is so. No doubtsubsequently to the period for which rent is now claimed, the plaintiffs havetaken a five years lease from the Government and acknowledged the Governmentas proprietor. That was in 1895 or 1302, but they can certainly claim arrearsof rent for the previous period and proceed with the present suits which arefor arrears of rent for the years 1297 to 1300.

16. The learned Judges, therefore, had not to considereither the effect of the surrender itself or any of the events which have sincefollowed.

17. The suits went back to the lower Appellate Court and afurther judgment (already referred to) was delivered by the Additional DistrictJudge on the 28th March, 1903. The Judge, it is true, seems to havemisunderstood the judgment of the High Court and to have considered himself atliberty to discuss again the question whether "the defendants had been putinto possession of the lands...in the legal acceptation of the word." Hisconclusion, however, was that even if the doctrine of estoppel applied, theplaintiffs were not entitled to rent in respect of plots D, E, F and G becausethey had not shown with sufficient precision the lands in those plots inrespect of which rent was claimed.

18. Thereupon, the plaintiffs again appealed to the HighCourt. The appeal came before Harington and Pargater, JJ. and judgment wasdelivered on the 26th July, 1905. Those learned Judges, as might have beenexpected, refrained from any further discussion of the question of estoppel.They confined themselves to pointing out that in view of the previous judgmentof the High Court, the only question which the Additional District Judge had toconsider on the remand was "what was the rent payable by the defendants inrespect of these particular lands." They went on to deal with the opinionof the learned Judge that there was no evidence before him on which he coulddetermine that question.

19. It appeared that the defendants had paid certain moniesinto Court under the provisions of S. 149 of the Bengal Tenancy Act. Thepayment was made on the footing that the rent was due to Government andGovernment not having made any claim-probably because in 1895 the Governmenthad leased the lands they claimed to there plaintiffs-the learned Judges heldthat in the circumstances the plaintiffs were entitled to the monies in Court.Those monies did not cover the whole of the plaintiffs claim. As thedefendants alleged that the payment was made in respect of rent due toGovernment it may, in my opinion, be legitimately inferred as the learned Vakilfor the defendants contended, that the payment was for rent due in respect oflands in plots D and E and perhaps a portion of plot G. As to the rest of theplaintiffs claim, the learned Judges accepted the finding of the Court below.The result of the litigation, therefore, was that the plaintiffs obtained somerent for plots D and E but no rent at all for the greater part of plots F andG. Nothing however turns on that now.

20. Incidentally, it may be mentioned that in the presentsuit no rent was paid in under S. 149, the defendants not admitting that anyrent was due from them. In paragraph 7 of their written statement they statedthat they held plots D and E as tenants of the Government by whom the plots hadbeen resumed in 1908. In paragraph 10 they pleaded that they had already paidthe rents of plots F and G to the persons therein named including Girindra Palwho were the "real maliks" of those plots, but no issue seems to havebeen framed in reference to that plea.

21. As I have already intimated, there is nothing, in myopinion, in the previous judgments of this Court to preclude a consideration ofthe question now raised as to the effect of the admitted surrender by theplaintiffs of plots D and E and subsequent events. The circumstances havechanged and the effect of the change is open to discussion. Hut the startingpoint must be that, as this Court decided, the defendants were inducted intopossession of the whole chur by the plaintiffs. The plaintiffs however are asmuch bound by the decision as the defendants. If the result was that thedefendants were estopped from denying the right of the plaintiffs to lease thewhole area to them, the plaintiffs in their turn were bound to secure thedefendants in quiet enjoyment of the whole. The landlords undertaking forquiet enjoyment by the tenant is implied from the relationship of landlord andtenant. [Transfer of Property Act, S. 108 (c); Budd Scott v. Daniel (1902) 2K.B. 351 = 71 L.J K.B. 706 = 18 T.L.R. 675 = 87 L.T. 392= 51 W.R. 134. Markhamv. Paget (1908) 1 Ch. 697= 98 L.T. 605 = 77 L.J. Ch. 451 = 24 T.L.R. 426 andthe under taking would include the protection of the tenant from disturbance bystrangers claiming by title paramount.

22. Moreover both in England and in India it is open to thetenant to prove a subsequent cesser of the landlords title. S. 116 of theEvidence Act says that.

No tenant of immoveable property shall, during thecontinuance of the tenancy, be permitted to deny that the landlord of suchtenant had at the beginning of the tenancy, a title to such immoveableproperty.

23. The estoppel refers to the title at the beginning of thetenancy. So in England, "It is clear law that though a tenant cannot denythe title of his landlord to deal with the premises, he may prove that thetitle has determined." Serjent v. Nash (1903) 2 K.B. 304 = 19 T.L.R. 510 =72 L.J. K.B. 630 = 89 L.T. 112 per Collins, M.R.

24. And one way in which the tenant can show that the titlehas determined is by proving an eviction by title paramount or the equivalentof such an eviction.

25. In the present case, the surrender by the plaintiffs ofD and E did not at first make much difference because the plaintiffs took alease of those plots from the Government and the defendants continued inpossession under the plaintiffs. But when the Government resumed possession ofthose plots, there occurred both a breach by the plaintiffs of theirundertaking for quiet enjoyment and an eviction by title paramount.

26. No doubt the defendants appear to have acquiesced and tohave protected themselves by attorning to the Government. Nevertheless thesurrender made it difficult, if not impossible, for the defendants to maintaina title to F and G as tenants of the plaintiffs. The reason has already beenstated. F and G could no longer be even plausibly held as accretions toKalkapur.

27. It was the plaintiffs, therefore, who by their ownconduct disturbed the title of the defendants as their tenants and laid thedefendants open to attack by third parties claiming the true title in F and G.It is not denied that the proprietary title has come in controversy in otherlitigation in which the plaintiffs have figured as parties. The difficulties ofthe defendants are apparent from the following passage in the District Judgesjudgment.

The plaintiffs are unjustly accusing the defendants ofcolluding with other proprietors. Take the case of Girindra Pal. Hispredecessor asserted his right to the lands in F and G as appertaining to theTouzi No. 125 of the Nadia Collectorate. The defendants refused to pay rent tothem or the plaintiffs. The plaintiffs then brought the suit in 1894.....Itappears that when after the High Court remand the Additional District Judgeagain dismissed the plaintiffs suit on the ground that the defendants were notestopped, it was then that the defendants compromised the suit with GirindraPal and came to an arrangement with him. The fact that they got very lenientterms is not very material. After the second decision of the High Court thedefendants gave notice to Girindra Pal and refused to pay rent and Girindra Palbrought a suit making the plaintiffs parties. That suit has been decided by theSubordinate Judge in appeal in favour of Girindra Pal on all the importantpoints. The Subordinate Judge, however, thought it necessary to remand the suitto have a local investigation made by a Commissioner. The plaintiffs haveappealed to the High Court and there it is pending now.

28. Well, the learned vakil for the defendants informed usthat since the District Judge wrote his judgment the suit has terminated infavour of Girindra Pal and the statement was not contradicted by the learnedvakil on the other aide. The District Judge held that things had not at thattime reached a stage at which it could be said that an eviction by titleparamount had occurred. That in the circumstances is a conclusion of law or ofmarked law and fact. The conclusion was open to attack, and it was attacked inthis appeal. It is necessary, therefore to examine the circumstances somewhatclosely to see whether it is well founded.

29. The District Judge speaks as if Girindra Pals [suit thename is used as including Girindra Pal and his co- sharers related to the wholeof F and G. Girindra Pal claimed as the proprietor of a village named Chakandiappertaining to estate No. 125 of the Nadia District. We must take it at anyrate on the arguments addressed to us that Chakandi covers a substantial partof F and G. The suit was instituted on the 27th August, 1509, against thepresent plaintiffs and defendants. The plaint referred to the suits of 1894 bythe proprietors of Kalikapur against the defendant. It set out that in 1311(1904) the present defendants accepted a lease of the land from Girindra Palspredecessor [which may be the arrangement spoken of by the District Judge] andthat in 1909 they gave notice to Girindra Pal that owing to the result of thesuits of 1894 they would no longer pay him the rent due under the lease.Girindra Pal went on to say that neither he nor his predecessor was a party tothe suits of 1894 and he ended by claiming a declaration that he was entitledto the land as appertaining to Chekandi and to the performance by the presentdefendants of their engagements with him.

30. Written statements were filed by the present plaintiffsand other co sharers in Kalikapur joining issue on the question of title. Thepresent defendants also filed a written statement. They did not traverse theallegations made by Girindra but frankly stated in effect that they wereprepared to accept as their land, lords either Girindra Pal or the proprietorof Kalikapur whichever might prove successful.

31. I ought also to mention that Girindra Pal having statedin his plaint that the defendants had carried out their obligations as histenants up to the year 1315-1908, made no claim for mesne profits. Declaratoryrelief was sought on the footing that the present defendants were his tenantsand that their possession was his possession.

32. Now as to the period before institution of this suit itdoes not appear that the defendants gave notice to the plain, tiffs of theirattornment to Girindra Pal. On the contrary it would appear from the DistrictJudges judgment that they made certain payments to the plaintiffs during theinterval between the termination of the suits of 1894 and the institution ofGirindra Pals suit. Such payments would also be consistent with the noticewhich they subsequently gave to Girindra Pal.

33. But it seems clear on a survey of the material factsthat after the institution of Girindra Pals suit, they could no longer beexpected to pay rent to the plaintiffs unless and until the latter proved theirability to secure them in quiet enjoyment. In other words even if there was noprevious entry by Girindra Pal the institution of the suit amounted in thecircumstances to such an invasion or entry by title paramount as to set thedefendants free to say that they must protect themselves, if necessary, fromthat date by attorning to Girindra Pal. They had already had to attorn to theGovernment for plots D and E.

34. The question what amounts to an eviction by titleparamount may present some difficulty and we are not referred to any Indianauthority on the subject. In England the current of authority seems to favourthe view that "it is not necessary for the tenant actually to go out ofpas session, and that if, upon a claim being made by a person with titleparamount, he consents by an attornment to such person to change the titleunder which he holds, or enters into a new arrangement for holding under him,this will be equivalent to an eviction and a. fresh talking." (Foa onLandlord and Tenant, 4th Edition, p. 169).

35. In Hill v. Saunders (1825) 4 B and C. 529 = 9 Mos. P.C.238 = 107 E.R. 1157 Holroyd, J. said "The plea discloses that which wasequivalent to an entry by the heir, it states that the heir threatened to evictthe defendant and that he was obliged to attorn, in order to prevent it"and Littledale, J, seems to have concurred with that observation. See alsoGrimwood v. Moss (1872) 7 C.P. 360 = 27 L.T. 268 = 20 W.R. 97 = 41 L.J.P.C. 239and Surgent v. Nash (1903) 2 K.B. 304 = 19 T.L.R. 510 = 72 L.J. K.B. 630 = 89L.T. 112 where it was held following Jones v. Carter (1846) 15 M. and W. 713 =153 E.R. 1040 = 10 Jur, 33, that the bringing of an action of ejectment wasequivalent to an entry. In those cases, it is true, the action was brought bythe landlord to eject the tenant for breach of a covenant protected by a clausefor reentry.

36. But I do not see why that should make any difference.The owner of the true title certainly has a right of entry against a trespasserand his action or suit in ejectment is brought to enforce that right. GirindraPals suit was not inform a suit in ejectment because he assumed, that he hadalready entered when the present defendants accepted a lease from him. That maybe so as between him and the present plaintiffs or the present defendants astrespassers. But as between the plaintiffs and the defendants, what took placeafter the termination of the suits of 1894 has to be considered. Theconsideration arising from the giving of possession lasted (as between theplaintiffs and defendants) so long as the defendants held possession under theplaintiffs.

37. On the whole, differing from the District Judge, I cometo the conclusion that the institution of Girindra Pals suit marks the extremelimit of that period and that the plaintiffs are not entitled to rent from thedefendants for any subsequent period.

38. The case, I may add, is not a satisfactory one to haveto deal with. Such endless litigation as there has been about this chur ishardly creditable to the parties concerned. If the fault is chiefly that of theplaintiffs the defendants are not altogether free from blame. And thedifficulty of dealing with complicated facts is enhanced by reason of the casecoming before us eleven years after it was instituted. It is at least a casein, which the facts should be broadly dealt with in the interests ofsubstantial justice.

39. The result is that the decree of the Court below will bemodified and the plaintiffs suit, will be dismissed so far as rent is claimedin respect of plots F and G for any period subsequent to the institution ofGirindra Pals suit.

40. The parties should pay their own costs in respect ofplots F and G throughout.

Lancelot Sanderson, C.J.

40. I agree.

.

Ram Chandra Chatterji and Ors. vs. Pramatha Nath Chatterjeeand Ors. (17.06.1921 - CALHC)