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PATNA HIGH COURT
Tarkeshwar Nath and K.K.Dutta JJ.
Administrator Of District Board
Versus
Deonath Sahay
Appeal From Appellate Decree No. 887 of 1966 ;
Decided On : AUGUST 06, 1969
LAND ACQUISITION ACT - SETTLEMENT OF LAND - VOID LEASE - POSSESSION OF LAND - TENANCY RIGHT - LIMITATION - EJECTMENT SUIT - ADVERSE POSSESSION - PERMANENT TENANCY RIGHT - TRANSFER OF PROPERTY ACT - BIHAR TENANCY ACT - NOTICE FOR TERMINATION OF TENANCY.
Fact of the Case:
The plaintiff, District Board, Gaya, acquired lands under the Land Acquisition Act for the purpose of constructing a road. The lands were settled with the defendant for agricultural purposes under a registered deed of lease dated 31-5-1932, which was later found to be void as it violated the rules framed by the State Government under the Bihar and Orissa Local Self-Government Act. The defendant continued to possess the lands and paid rent to the plaintiff till 1952-53. In 1953, the plaintiff issued a notice to the defendant demanding arrears of rent and asking him to vacate the lands within three months. The defendant replied claiming to have acquired occupancy rights in the lands by adverse possession and refused to vacate. The plaintiff filed a suit for ejectment and recovery of arrears of rent and damages.
Finding of the Court:
1. The lands in suit do not constitute road side or side cutting land appertaining to Gaya-Gopalganj road, and hence, the provisions of Article 146-A of the Limitation Act are not applicable. 2. The registered lease dated 31-5-1932, by virtue of which the defendant was inducted on the lands in suit, was void as being in violation of Rules 93, 94, and 105 framed by the State Government, and the defendant could not have acquired any right whatsoever in the lands in suit by virtue of this document. 3. The defendant did not acquire any right of occupancy in the lands in suit as the provisions of Sec.116 of the Bihar Tenancy Act barred such acquisition since the lands were acquired under the Land Acquisition Act. 4. The defendant did not acquire any permanent tenancy right in the lands in suit by prescription as he never asserted any such right prior to 1-9-1953, and the present suit was instituted within seven years from the time when such right was asserted for the first time. 5. The defendant had acquired a tenancy right in the lands in suit by being allowed to remain in possession of the lands and by accepting rent from him year to year, but such tenancy continued only till 1952-53, and no such tenancy existed thereafter. 6. The plaintiff is entitled to evict the defendant from the lands in suit as the tenancy in favor of the defendant did not subsist after 1952-53, and the suit having been filed in the year 1960, that is, long before the expiry of 12 years from that date cannot be held to be barred by limitation.
Issues: 1. Whether the lands in suit constitute road side or side cutting land appertaining to Gaya-Gopalganj road? 2. Whether the registered lease dated 31-5-1932 was void and the defendant could not have acquired any right whatsoever in the lands in suit by virtue of this document? 3. Whether the defendant acquired any right of occupancy in the lands in suit? 4. Whether the defendant acquired any permanent tenancy right in the lands in suit by prescription? 5. Whether the defendant had acquired a tenancy right in the lands in suit by being allowed to remain in possession of the lands and by accepting rent from him year to year? 6. Whether the plaintiff is entitled to evict the defendant from the lands in suit?
Ratio Decidendi: 1. The provisions of Article 146-A of the Limitation Act are not applicable to the case as the lands in suit do not constitute road side or side cutting land appertaining to Gaya-Gopalganj road. 2. The registered lease dated 31-5-1932 was void as it violated the rules framed by the State Government under the Bihar and Orissa Local Self-Government Act, and the defendant could not have acquired any right whatsoever in the lands in suit by virtue of this document. 3. The defendant did not acquire any right of occupancy in the lands in suit as the provisions of Sec.116 of the Bihar Tenancy Act barred such acquisition since the lands were acquired under the Land Acquisition Act. 4. The defendant did not acquire any permanent tenancy right in the lands in suit by prescription as he never asserted any such right prior to 1-9-1953, and the present suit was instituted within seven years from the time when such right was asserted for the first time. 5. The defendant had acquired a tenancy right in the lands in suit by being allowed to remain in possession of the lands and by accepting rent from him year to year, but such tenancy continued only till 1952-53, and no such tenancy existed thereafter. 6. The plaintiff is entitled to evict the defendant from the lands in suit as the tenancy in favor of the defendant did not subsist after 1952-53, and the suit having been filed in the year 1960, that is, long before the expiry of 12 years from that date cannot be held to be barred by limitation.
Final Decision: The appeal is allowed, and the judgments and decree of the courts below are modified to the effect that the order of dismissal of the plaintiff's claim for eviction of the defendant from the lands in suit as passed by the courts below is hereby set aside, and the plaintiff-appellant is held to be entitled to recovery of possession of the lands in suit from the defendant-respondent. The plaintiff-appellant shall get half his costs in this Court as well as in the two courts below on the valuation of Rs. 2338/- only, at which the present appeal has been valued.
K.K.Dutta, J.
1. This appeal by the plaintiff arises out of a suit for ejectment and for recovery of arrears of rent as well as damages. The suit lands, as described in the schedule attached to the plaint, comprises a number of plots appertaining to villages Aiwan and Abgilla having an area of 12 bighas 10 kathas 13 dhurs and odd. According to the plaintiffs case, these lands were acquired under the Land Acquisition Act for the District Board, Gaya, and are meant for road side and side cutting land of the Gaya-Gopalganj Road. These were subsequently settled with the defendant for the purpose of cultivation under a registered deed of lease dated the 31st May, 1932, executed by the then Chairman of the District Board. The settlement was made for a period of five years on an annual rental of Rs. 3/- per bigha, payable according to the English Calendar year, the total rent being Rs. 37/8/- per year. Under the terms of this lease, the lessor was entitled to determine the lease whenever the lands would be required by the District Board, after giving three months notice to the lessee. The defendant duly came into possession of the lands by virtue of this settlement and after the expiry of the period of the lease in the year 1937, he was allowed to continue in possession over the lease-hold property from year to year in each successive year on the same terms as before.
Subsequently, as the lands were required by the plaintiff and also because the defendant had defaulted in payment of rent, a notice was issued by the plaintiff to the defendant on 14-5-1953 demanding arrears of rent amounting to Rs. 114/12/- and also calling upon the defendant to vacate possession of the lands within three months from the date of the receipt of the notice. The defendant thereon sent a reply dated 1-9-1953 claiming to have acquired occupancy rights in the lands in question by adverse possession and refused to vacate the same. It was further alleged by the plaintiff that as the value of the land with respect to which the aforesaid lease was executed in the year 1932, was more than Rs. 500/-, the Chairman of the District Board was not empowered to make any such settlement in view of the provisions of Rules 93, 94 and 103 framed by the State Government by virtue of powers vested under Sec.138 of the Bihar and Orissa Local Self-Government Act. The aforesaid lease was in consequence void ab initio and the defendants possession from the very inception was that of a trespasser and he could not have acquired any tenancy right in the lands in question. It was further alleged that in any view of the matter as the defendant had asserted independent and hostile rights in his reply dated 1-9-1953, he had forfeited all his rights to continue in possession as a lessee or tenant holding over from year to year after the expiry of the period of the aforesaid lease. On these allegations, the plaintiff prayed for a decree for eviction of the defendant from the lands in suit and for delivery of possession of the same to the plaintiff and also made a further claim for recovery of a sum of Rs. 225/- on account of arrears of rent for a period of six years, namely, 1953-54 to 1958-59 at the rate of Rs. 37/8/-per year besides a further amount of Rs. 30.00 as interest thereon and a further sum of Rs. 2190.00 as damages at the rate of Re. 1/- per day from 2-2-1954 to 2-2-1960, the total amount claimed being Rs. 2445/-. It may be mentioned here that the suit was initially filed in the Court of Munsif 1st Court, Gaya, on 15-2-1960, but the plaint was returned by that Court on 23-4-1960 and was thereafter refiled on that very day in the Court of Munsif, 2nd Court, Gaya.
2. According to the case of the defendant as made out in the written statement, the lands in suit had been acquired by the District Board partly by virtue of gift made by the Tekari Raj and partly under the provisions of the Land Acquisition Act. It appears, however, from the judgments of both the Courts below
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