AMRITALAL OJHA Vs. UTTAM LAL SARKAR

JUDGEMENT

(1.) This appeal is on behalf of two of the defendants and arises out of a suit instituted by the plaintiffs against; them and another on 27 April 1934 to recover royalty for the period between 28 March 1928 and 27 March 1934. The only defence which is necessary for us to consider in some detail is the defence that rent for this period is not payable, because of their dispossession by persons having, title paramount to the title of the plaintiff, who is the lessor of the defendants. Two other points have been raised before us on behalf of the defendants- appellants, which, we would notice in their proper places. To decide the first point, namely whether the suit ought to have been dismissed on, the ground that the tenants have been dispossessed by title paramount, it is necessary to notice the following facts. Mouza Bau Bahal, also called jote Dhemu, is said to appertain to the zamindari of the Maharaja of Burdwan. Under the Burdwan zamindari, there is a patni and under the patni there is a darpatni. Uttam Lal Sarkar, the plaintiff in this suit, has a share in the aforesaid patni and also has eight annas share in the said darpatni. On 26 January 1920 he granted a mining lease for 999 years of certain lands situated in mouza Banbahal to one James Kirkwood. (Ex. 1, Pt. II, p. 1.) In para. 2 of the said lease different rates at which royalty for different classes of coal was to be paid are mentioned, as for instance, 5 annas a ton for steam coal, 3 annas a ton for slack, 2 annas a ton for dust coal, etc. James Kirkwood sold his rights in this leasehold to Amrita Lal Ojha, defendant 1, on 20 June 1921. Amrita Lal in his turn entered into a partnership with another person, Nanji Khengarji, for the purpose of working the coal land. By this partnership transaction, the interest which Amrita Lal had acquired in the leasehold from James Kirkwood vested in himself and his partner Nanji Khengarji, and the business was carried on in the name and style of Khengarji Amritalal & Co. The said firm is defendant 2 to this suit, Amrita Lal Oja, defendant 1, and Eabi Shankar Eewa Shankar Trivedi, the transferee of Nanji Khengarji's interest is defendant 3. Between 1923 and 1928, Uttam Lal sued his lessees for rent and royalty due in accordance with the terms of the lease, Ex. 1. The tenant- defendant in these suits raised a plea that inasmuch as he was only an eight annas sharer in the darpatni, he could only claim rent and royalty at half the rates mentioned in the lease. This defence was overruled in all these suits and Uttam Lal got decrees at the full rates mentioned in the lease. One of the defences to this suit was the selfsame defence that had been overruled by the learned Subordinate Judge in those suits, and the defendants- appellants did not pursue this defence further.

(2.) It appears that on 9 September 1931 a person named Anandji Haridas took a mining lease from the Maharaja of Burdwan. After taking this mining lease, he took up the position that he was entitled to the underground minerals and not Uttam Lal, or the defendants who are the lessees under Uttam Lal. He apparently proceeded upon the view that the patnidar or the darpatnidar has no right to the underground minerals, inasmuch as the patni or the darpatni patta never expressly gave them those rights. He accordingly served a notice on 31st November 1931 on the defendants, forbidding them to pay royalty to Uttam Lal. After getting this notice the defendants did not attorn to Anandji Haridas, but continued to be in possession as tenants under Uttam Lal. Anandji Haridas followed up the notice by instituting a suit for recovery of possession against Amrita Lal and Uttam Lal, the Maharaja of Burdwan being also made a party defendant to the suit. This suit was filed on 26 November 1932, and has been numbered Title Suit No. 54 of 1932. In the next year the Ukhra Babus filed a similar suit, being Title Suit No. 180 of 1933 for possession, against Amrita Lal and Uttam Lal, they claiming as prior lessees under the Maharaja of Burdwan. This suit was filed on 24 August 1933. In both these suits the plain, tiffs took up the position that Uttam Lal and Amrita Lal were trespassers on the mine, they having no right to the same. Both the suits were filed for recovery of the mine in possession of Amrita Lai. These suits have not been disposed of by the trial Court, and there has not, up to now, been any adjudication as to whether the title of the Maharaja of Burdwan to the underground minerals and so the title of the lessees under him, is paramount to the title of Uttam Lal or not. But without expressing any opinion on this question, for the purpose of deciding the controversy in this case, we would assume that Uttam Lal had no title to the minerals but that the plaintiffs in those suits have paramount title, that is to say, title superior to the title of Uttam Lal. On these facts, the question which was raised in the lower Court and decided against the appellants is this: Has there been a dispossession of the defendant by the plaintiffs of those two suits, namely title Suits Nos. D4 of 1932 and 180 of 1933?

(3.) As has already been stated, the defendants are in actual possession; they have not been turned out by any of the plaintiffs in those suits; nor had they attorned to any one of them. The only thing is that Anandji Haridas gave notice to them and then sued them for possession. The Ukhra Babus did not give any such notice but have sued for possession on the ground that they had got a settlement from the Maharaja of Burdwan of the underground minerals and that settlement was before the Maharaja concluded the settlement with Anandji Haridas. In our judgment, there has not in fact or in law been any dispossession at all, that is to say, the defendants have not been dispossessed by any of these persons. In order to sustain the defence to the rent suit, founded upon the eviction by title paramount, two things must be proved by the defendant, namely (i) that he has been evicted by a third person, and (ii) that third person had a paramount title, superior to the title of his lessor. As we have already stated that for the purpose of our judgment we assume (but do not decide) the second element to be established. But the question is whether the defendants have been evicted. The principle is well established that physical expulsion is not necessary; it would be sufficient if the tenant under threat of dis. possession from a third person attorns to him and so converts his possession into possession of the latter. The mere assertion by the third person that he has better title to the knowledge of the lessor and the lessee, is not a defence to a rent suit by the lessor against the lessee, even if this assertion be a true assertion. It is essential that the person asserting such title should take possession or should be taken in the eye of law to have taken possession of the demised premises. If he does not take physical pos. session but the tenant attorns to him, in the eye of the law he gets into possession through the lessee who becomes his tenant. Through the possession of his tenant, he is in constructive possession of the tenancy. It is on this principle that attornment by the lessee to the person claiming and having title paramount amounts in law to an eviction by title paramount. If this principle be correct, we do not see how we can give effect to the contention raised before us by the appellants. The learned advocate for the appellants however has contended that the institution of a suit for possession by a person having title paramount in law amounts to an eviction by title paramount and in support of that relies upon a passage in the judgment of Richardson J. in Ram Chandra V/s. Pramatha Nath (1922) 9 A.I.R. Cal. 237 at p. 154. The passage runs; as follows: In England the current of authority seems to favour the view that it is not necessary for the tenant actually to go out of possession and that if, upon a claim being made by a person with title paramount, he consents by an attornment to such a person to change the title under which he holds, or enters into a new arrangement for holding under him, this will be equivalent to an eviction and a fresh taking.