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1973 Supreme(Cal) 10
HIGH COURT OF CALCUTTA
Salil Kumar Datta
SATISH CHANDRA KARMAKAR - Appellant
Versus
SHAIKH SAHADAT HOSSAIN - Respondent
Appeal From Appellate Decree 965 Of 1965
Decided On : JANUARY 08, 1973
Jnan Ranjan Ganguly, NANDALAL PAL, NEPAL CHANDRA SEN
The tenancy of an under-lessee is governed by the same Act which governs the head tenancy of the head lessee, and if the head tenancy is a non-agricultural tenancy, then the under-tenancy is also a non-agricultural tenancy, even if the under-tenancy is for agricultural purposes.
Headnote:
NON-AGRICULTURAL TENANCY - PRESUMPTION OF CORRECTNESS - BURDEN OF PROOF - WEST BENGAL NON-AGRICULTURAL TENANCY ACT, 1936 - BENGAL TENANCY ACT, 1885 - INTERPRETATION - HEAD LEASE - SUB-LEASE - AGRICULTURAL PURPOSE - TENANCY RIGHTS - EJECTMENT - VALIDITY OF NOTICE.
Fact of the Case:
Plaintiff, a non-agricultural tenant, filed a suit for recovery of possession of the suit land from the defendant, an agricultural tenant, on the ground that the defendant's tenancy had expired and he was holding over as a trespasser. The defendant contended that his tenancy was governed by the Bengal Tenancy Act, 1885, and that he had acquired a right of occupancy in the suit land. The trial court and the appellate court decreed the suit in favor of the plaintiff.
Finding of the Court:
The High Court held that the presumption of correctness attached to the entries in the C.S. settlement record, which recorded the plaintiff's interest as that of a non-agricultural tenant and the defendant's interest as that of a dakhalkar tenant, and that this presumption had not been rebutted. The Court further held that the assessment of rent under the Bengal Non-agricultural Lands Assessment Act, 1936, implied that the land was settled under a non-agricultural tenancy. The Court also held that the defendant's tenancy, though for agricultural purposes, was in law a non-agricultural tenancy on the ground that the lease of the plaintiff as the head lessee and lessor of the defendant was a non-agricultural tenancy. The Court further held that the plaintiff's interest had not vested in the State under the West Bengal Estates Acquisition Act, 1953, and that he was entitled to maintain the suit for recovery of possession.
Issues: 1. Whether the presumption of correctness attached to the entries in the C.S. settlement record, which recorded the plaintiff's interest as that of a non-agricultural tenant and the defendant's interest as that of a dakhalkar tenant, had been rebutted. 2. Whether the assessment of rent under the Bengal Non-agricultural Lands Assessment Act, 1936, implied that the land was settled under a non-agricultural tenancy. 3. Whether the defendant's tenancy, though for agricultural purposes, was in law a non-agricultural tenancy on the ground that the lease of the plaintiff as the head lessee and lessor of the defendant was a non-agricultural tenancy. 4. Whether the plaintiff's interest had vested in the State under the West Bengal Estates Acquisition Act, 1953.
Ratio Decidendi: 1. The presumption of correctness attached to the entries in the C.S. settlement record had not been rebutted, as the defendant had failed to produce any evidence to show that his tenancy was governed by the Bengal Tenancy Act, 1885. 2. The assessment of rent under the Bengal Non-agricultural Lands Assessment Act, 1936, implied that the land was settled under a non-agricultural tenancy, as the Act provided for assessment of land revenue of lands not used for agricultural purposes in temporary settled estates. 3. The defendant's tenancy, though for agricultural purposes, was in law a non-agricultural tenancy on the ground that the lease of the plaintiff as the head lessee and lessor of the defendant was a non-agricultural tenancy. The Court followed the principle laid down in Babu Ram Roy v. Mahendra Nath Samanta, (1904) 8 Cal WN 554, which held that where the lands in the holding of an agricultural raiyat consisted partly of agricultural land and partly of homestead lands, and the portion which could be used as homestead was let out for residential purposes, the under-tenant would be an under-raiyat within the meaning of the Bengal Tenancy Act and the provisions of the Transfer of Property Act would not be applicable. 4. The plaintiff's interest had not vested in the State under the West Bengal Estates Acquisition Act, 1953, as the Act included non-agricultural tenants as intermediaries, and the plaintiff's interest was that of a non-agricultural tenant.
Final Decision: The appeal was dismissed and the decree of the trial court and the appellate court was affirmed.
( 1 ) THIS is an appeal by the defendant against a judgment of affirmance. The plaintiff instituted the suit on the following allegations: The suit land covered by C. S. Dags 171, 172 and 173 measuring. 97 decimals khatian No. 65 published under the Non-agricultural Land Assessment Act (Bengal Act XIX of 1936 ). situate Mouja Manirampore P. L. S. Barrackpore within North Barrackpore Municipality, with structures on portion of dag No. 171 belonged to the plaintiff. The structures and land appertaining thereto measuring. 10 decimals are recorded as R. S. dag Nos. 171/198 and 171/199 which are in khas possession of the plaintiff. The remaining land with tank recorded in dag No. 172 measuring. 20 decimals. Pahar of Tank recorded in day No. 173 measuring. 08 decimals and the remaining portion of dag No. 171 measuring. 59 decimals, in all. 87 decimals was settled by the plaintiff with the defendant at a monthly rent of Rs. 10-6-8 p. or annual rent of Rs. 125/-for three years from Sravan 1358 B. S. to Asarh 1361 B. S. and an unregistered kabuliyat was executed by the defendant. The plaintiff held the land under the Collector of 24-Parganas as a non-agricultural tenant for period certain upto 1972 and the defendant was also a non-agricultural tenant under the plaintiff under, the provisions of West Bengal Non-agricultural Tenancy Act and since 1358 B. S. he had been holding the land as a lessee without a lease in writing the kabuliyat being unilateral and unregistered. The defendant not having paid the rent, the plaintiff filed a suit being Money Suit No. 97 of 1957 against the defendant in the Second Court of the Munsif at Sealdah for arrears of rent upto Sravan 1364 B. S. which was decreed on admission. The plaintiff being in need of the suit land served through his lawyer a notice to quit dated April 12, 1958 determining the tenancy with the month of Asarh 1366 B. S. the tenancy being from Sravan to Asarh and the notice was duly served. The defendant however failed to comply with the said notice and his possession from Sravan 1, 1360 B, S. has been that of a trespasser. The defendant was in arrears of rent for 23 months from Bhadra 1364 B. S. to Asarh 1366 B. S. amounting to Rupees 239-9-4 p. The plaintiff's interest being 'dakhalkar' under the Collector, his estate has not vested in the State. The plaintiff accordingly prayed for a decree of khas possession of the suit land on eviction of the defendant therefrom also for rent as aforesaid and mesne profits.
( 2 ) THE suit was contested by the defendant who filed a written statement contending inter alia that the suit was not maintainable and that the notice was not valid, legal or sufficient. It was averred that his tenancy was for. 97 decimals of land though the plaintiff surreptiliously dispossessed the defendant from. 10 decimals of land and got it recorded as his khas land. The money suit was for the entire tenancy. The plaintiff had no necessity for the suit land as alleged. The defendant took settlement for agricultural and horticultural purpose and for rearing fish and his tenancy was accordingly governed by the Bengal Tenancy Act and the defendant was thus a permanent agricultural tenant having non-ejectable title. The tenancy was never a non-agricultural tenancy, and was not governed by the West Bengal Non-agricultural Tenancy Act and having occupied the land for over 12 years from 1360 B. S. the defendant had acquired a right of occupancy in the suit land. The defendant had made considerable improvements in the suit land and his name was recorded in R. S. settlement as Dakhalkar tenant. It was also alleged that the tenancy was according to Bengali calendar year from Baisakh to Chaitra and the notice was accordingly not legal valid or sufficient. For these reasons the defendant submitted that the claim for recovery of possession and mesne profits should be dismissed.
( 3 ) ON a trial on evidence the learned Munsif decreed the suit and an appeal th
