Judgement

Law Rep. 55 Ind. App. 212 ( 1927- 1928) Kamakhya Narayan Singh V. Ram Raksha Singh

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Consolidated Appeals (Nos. 13, 82 and 102 of 1926) from three decrees of the High Court (August 6, 1924, and March 19, 1925) reversing three decrees of the Additional Subordinate Judge of Hazaribagh.

The appeals were in three suits instituted by the appellant against the several respondents in 1919 and 1920 to recover possession of villages included in mukarrari istimrari grants made by his predecessor in title. It was not contested in the present appeal that the grants expired on the deaths of the respective grantees. The plaintiff alleged that after the grantees deaths the defendants, who were heirs or assignees of the grantees, and persons claiming under them, became yearly tenants, and that the tenancies had been determined by notice. The defendants all denied that they were yearly tenants, and pleaded that they had acquired a permanent, heritable and transferable interest by adverse possession, and that the suits were barred under the Indian Limitation Act, 1908, Sch. I., art. 144.

The material facts appear from the judgment of the Judicial Committee.

They may be stated shortly as follows —

In P. C. Appeal No. 13 the grantees died about 1891, and an assignee remained in possession, contending that the holding was permanent and heritable, the grantor contending to the contrary. The assignee paid decrees for rent obtained by a usufructuary mortgagee against the grantor and himself. After that mortgage came to an end in 1898 no rent was paid. The assignee was willing to pay rent to the grantor provided that his name was entered as the holder of the mukarrari interest, and that he ^as given receipts made out in his own name ; he declined to accept receipts in the marfatdari form, i.e., in the names of the original mukarridars.

In P. C. Appeal No. 86 the last survivor of the grantees died in 1883, and their heirs remained in possession. For some years they paid rent to the grantor ; receipts were given in the names of the original mukarridars, but the names of the persons who made the payment also were entered in the documents. In 1898 one of the defendants asked for a receipt in his own name, which was refused. After that no rent was paid.

In P. C. Appeal No. 102 the facts were substantially the same as in Appeal No. 86.

The trial judge allowed the plaintiffs claims, but the High Court upon separate appeals held that the suits were barred by limitation. The first appeal (No. 238 of 1921 ; P. C. No. 13 of 1926) was heard by Jwala Prasad A.C.J. and MacPherson J., and is reported at I. L. R. 4 Pat. 139. The other appeals (No. 246 of 1921 and No. 22 of 1922) were heard by Benches differently constituted, but all the learned judges concurred in the view expressed in the judgment of the learned Acting Chief Justice. Shortly stated he held (agreeing in that respect with the trial judge) that the leases terminated with the lives of the grantees. In his opinion the defendants predecessors who remained in possession were merely trespassers ; there was no tenancy, either by operation of law or otherwise ; and the suits were barred by adverse possession under the Indian Limitation Act, 1908, Sch. I., art. 144.

1927. Dec. 12, 13. Sir George Lowndes K.C. and Kenworthy Brown for the appellant. It is now settled by decision that the original leases were for lives and not permanent. After their expiration the defendants predecessors paid rent for some years. In the second and third appeals they paid direct to the grantor; in the first appeal they paid rent decrees obtained by a usufructuary mortgagee, and having regard to s. 76 (a) of the Transfer of Property Act, 1882, the mortgagee was agent for the

Law Rep. 55 Ind. App. 212 ( 1927- 1928) Kamakhya Narayan Singh V. Ram Raksha Singh

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grantor. The relationship of landlord and tenant was thereby constituted. That would undoubtedly be so in English law and was also so in India Ram Chandra Singh v. B