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1931 Supreme(SC) 83
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, LORD SALVESEN, AND SIR GEORGE LOWNDES.
JOGESH CHANDRA ROY - Appellant
Versus
EMDAD MEAH - Respondents
On appeal from the High Court at Calcutta.
Decided On : Nov. 20. 1931.
Solicitors for appellant:Barrow, Rogers & Nevill. Solicitor for respondent: J. E. Lambert.
In lease disputes where a tenant denies receiving possession, the landlord bears the burden of proving delivery of possession before claiming rent. For appeal purposes under Section 110 CPC, the subject matter's value is determined at the date of the plaint, regardless of recurring liabilities.
Headnote:(A) Code of Civil Procedure, 1908 - Section 110 - Value of subject-matter for appeal - The value of the subject-matter of the suit for the purposes of determining the right of appeal is the value at the date of the plaint - The fact that there might be claims for rent for other years or a recurring liability is immaterial unless the case involves a question of title.
(B) Code of Civil Procedure, 1908 - Sections 100 and 101 - Onus of proof - Where there is no dispute as to the identity of the subjects let, but the tenant denies that he has ever got possession of the subjects, it is for the landlord to prove that he has discharged his obligation to put the tenant in possession before he can enforce the tenant's obligation to pay rent.
(C) Specific Relief Act - Section 42 - Declaration of right and confirmation of possession - Where a decree declares the right of co-sharers and confirms their possession, the landlord cannot be held to have given possession to a tenant of any part of the co-sharers' undivided interest.
(D) Lease - Apportionment of rent - If a landlord is unable to provide possession of the entire leased area due to the rights of co-sharers, but the tenant is in possession of the remaining available portion, the tenant is liable for rent subject to a proper abatement in respect of the portion not possessed.
Facts of the case:
A landlord sued a tenant for recovery of rent based on a lease agreement. The tenant contended that the landlord had failed to put him in possession of the demised land. In a separate suit, the tenant's sisters obtained a decree for a declaration of their right and confirmation of their possession as co-heirs in the property. The lower courts held conflicting views on whether the burden of proving delivery of possession lay with the landlord or the tenant.
Findings of Court:
The court found that the burden of proving delivery of possession rests with the landlord when the tenant denies ever receiving it. Since the co-sharers' possession was confirmed by a final decree, the landlord could not have delivered the entire property to the tenant. However, the evidence indicated that the tenant was in possession of the share of the land available apart from the co-sharers' interest.
Issues: Whether the value of the subject matter for appeal under Section 110 of the Code of Civil Procedure includes recurring liability; whether the onus of proving delivery of possession lies with the landlord or the tenant; and whether rent can be abated if the landlord fails to provide possession of a portion of the leased land.
Ratio Decidendi: The value for the purpose of Section 110 CPC is the value at the date of the plaint. In lease disputes, the landlord must prove delivery of possession to claim rent if the tenant denies receiving it. If a landlord cannot provide possession of a portion of the land due to the rights of third parties, the tenant is liable for rent only for the portion actually possessed, necessitating an abatement of rent.
Result: Appeal allowed; decrees of the courts below set aside; case remitted to the High Court to determine the proper abatement of rent.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- burden of proof
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civil procedure
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property law
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landlord and tenant
- lease and rent
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co-ownership
- possession
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landlord and tenant
Judgement
Consolidated Appeal (No. 14 of 1930) from two decrees of the High Court (June 17, 1928) on appeal from two decrees of the District Judge of Chittagong (June 27, 1925), made on appeals from a decree of the Second Subordinate Judge. The present appeal was by special leave granted at the hearing.
The effect of the judgment and decrees appealed from was to dismiss a suit brought in 1920 by the appellant against the respondent claiming a decree for Rs.2028-14-0 as rent for the Bengali year 1326 ( 1919- 1920) under a kabuliyat, dated October 11, 1917, relating to part of jote 83 which was included in the appellants taluk.
The respondent by his written statement pleaded (1.) that he had been induced to sign the kabuliyat by undue influence ; (2.) that the appellant had failed to put him into possession of the demised land. The first defence had been negatived by both the two first Courts, and the second only was material to the present appeal.
The judgment of the High Court, which was delivered by Mukherji J. and concurred in by Rankin C.J., dealt also with an appeal in another suit brought by the present respondents sisters against the present appellant and respondent claiming a declaration of their right under Mahomedan law to a share in jote 83 as heirs to their father, and the judgment held that they were entitled to the declaration ; in the present suit the Court held that the District Judge (who had made a decree for the rent) had wrongly placed the burden of proof as to possession upon the defendant, and that the suit failed, as the plaintiff had not proved that the sisters had ever been dispossessed.
The facts appear from the judgment of the Judicial Committee.
The High Court, by a judgment delivered by Rankin C.J., Ghose J. concurring, granted the appellant a certificate that the case was a fit one for appeal to His Majesty in Council. The learned Chief Justice said that since the suit the appellant had brought suits to recover rent for later years, and that consequently, if the proposed appeal suc ceeded, he would make good a claim to an amount over Rs. 10,000; another way of putting the same matter was that the case was one of a recurring liability, and the capital value of the rent was over Rs. 10,000. The matter therefore came within the language of s. 110 of the Code of Civil Procedure.
1931. Oct. 16. Wallach for the respondent. There was no right of appeal under s. 110 of the Code. The claim in the plaint was for Rs.2,048-14-0 as rent. In Gudivada Man-gamma v. Maddi Mahalakshmi (( 1929) L. R. 57 I. A. 56.) the Board held, approving the decision of the Madras High Court in Subramania Ayyar v. Sellammal (( 1925) I. L. R. 39 M. 843.), and disapproving the view of the Calcutta High Court, that the value of the subject-matter of the suit for the purposes of cl. 1 of s. 110 is the value at the date of the plaint. That was followed in Rajendra Kumar Ghosh v. Hemanta Kumar Ghose . (( 1931) 35 Cal. W. N. 699 (P. C).) In the Madras case it was held (( 1925) I. L. R. 39 M. 843,846,849.) that where the operation of the decision is confined to a particular subject-matter, cl. 2 of s. 110, relating to a decree involving a claim respecting property of over Rs. 10,000 value, has no application. The fact that there might be claims for rent for other years is therefore immaterial; moreover the kabuliyat described the tenancy as "a non-permanent (bekaemi) lease," and it was therefore terminable on notice. It is true that in Surapati Roy v. Ram Narayan Mukerji (( 1923) L. R. 50 I. A 155, 161.), which related to two suits for rent, amounting to about
Rs.2500, under a darpatni lease, the Board held that there was a right of appeal and referred to the recurring liability for rent, but the real issue there was whether the darpatni had been validly transferred, therefore the case involved a question of title.
Pringle for the appellant. There is a right of appeal for the reasons stated by the High Court. In Radhakrishna Ayyar v. Su
