- (1.) This appeal is on behalf of the defendant and it arises out of a suit commenced by the plaintiff respondent, in the Court of the Subordinate Judge at Chaibassa, for recovery of possession of the land described in schedule to the plaint, on the allegation that the defendant was a monthly tenant in respect of the same, and that the tenancy was determined by a notice to quit. The suit was decreed by the trial Court and the decision was affirmed, on appeal, by the District Judge, Purulia, and on Second Appeal, by a Division Bench of the High Court of Patna. The defendant has now come up to this Court on the strength of a certificate granted under Section 110, Civil P. C.
(2.) Mr. Setalvad, appearing on behalf of the defendant appellant, stated to us at the outset that he would not dispute the validity or sufficiency of the notice to quit served upon his client, if on the facts of this case he is held to be a monthly tenant under the plaintiff in respect of the premises in suit. His contention, in substance, is that the defendant was, at no point of time, a monthly tenant under the plaintiff or his predecessor. There might have been, according to the learned Counsel, two tenancies for one year each for two successive periods, but on the expiry of the second yearly lease, which happened on 7th December, 1926, the defendant ceased to be a tenant and no fresh tenancy was created by 'holding over', as is contemplated by S. 116, T. P. Act. As there was no "holding over", there could not be any question of a monthly tenancy being brought into existence under the provision of S. 116, T. P. Act, and the present suit of the plaintiff having been admittedly brought more than 12 years after the determination of the second yearly lease, is barred by limitation under Art. 139, Limitation Act. The whole controversy in this appeal thus centres round the point as to whether the defendant was in fact a monthly tenant under the plaintiff at the date when the notice to quit was served upon him. To appreciate the respective contentions that have been put forward upon this point by the learned Counsel on both sides, it will be necessary to narrate briefly the material facts in their chronological order.
(3.) The property in suit is a plot of land, measuring 4 bighas 12 cuttas, and is comprised in old Survey plot No. 573 of village Jugselai in the district of Singhbhum. The entire village forms part of the Dhalbhum estate, of which the plaintiff is admittedly the present proprietor. One Charan Bhumji was the "Prodhan" of village Jugselai from some time before 1913 and on 24-7-1913 the father of the defendant, by a registered Patta, took lease of about 31 bighas of land appertaining to Survey plot No. 573 from this Prodhan for purposes of cultivation. It is not disputed that the property in suit is covered by this Patta. At that time the proprietor of the Dhalbhum estate was Raja Satrughna and he died in 1916, leaving behind him a will by which the entire estate was bequeathed to the present plaintiff. The plaintiff's claim under the will was challenged by one Pratap Chandra Deo Dhabal who succeeded in getting his name recorded as proprietor of the zamindary in the Singhbhum Collectorate. Thereupon the plaintiff instituted a suit (being Title Suit No. 67 of 1921) in the Court of the Subordinate Judge at Midnapore for establishment of his title to the zamindary and the suit was decreed by the trial Judge. Against this decision, the defendant Partap Chandra Deo Dhabal took an appeal to the High Court of Calcutta and during the pendency of his appeal, the High Court appointed a Receiver who was put in possession of the entire estate. On 8-12-1924, the defendant executed a registered kabuliyat in favour of the Receiver, by which he purported to take settlement of the land in suit for a period of 10 years at a rental of Rs. 46 per annum and a selami of Rs. 250. There was a covenant in the lease, which looks like one for perpetual renewal, and it was to the effect that on the expiry of the term, if the lessor did not require the land for his own purposes and decided to re-settle it, the lessee would be entitled to fresh settlement on enhanced rent and on such terms as might be then agreed upon between the parties. It appears from the record that the selami money, amounting to Rs. 250, was paid by the defendant to the Receiver several months before the kabuliyat was executed, and the rental amounting to Rs. 46 was paid for the first time on 8-3-1925. The next payment of rent was made in the succeeding year, on 16-3-1926. Admittedly, no further payment of rent was made by the lessee either to the Receiver or to the proprietor since then, up to this period. The High Court dismissed the appeal preferred by Pratap Chandra Deo Dhabal some time in 1924 and this order of dismissal was affirmed by the Judicial Committee in May 1927. The Receiver was then discharged and the plaintiff got possession of the entire estate in July 1927. On 15-4-1937 the plaintiff brought a suit for ejectment (being Title Suit No.2 of 1937) against the defendant in respect of this property in the Court of the Subordinate Judge at Chaibassa. The claim was based substantially upon the terms of the kabuliyat executed by the defendant on 24-12-1924, and the suit was, in fact, one for ejectment of a lease on the expiration of the period provided for in the lease. It was only the renewal clause in the kabuliyat that was challenged as invalid and inoperative, not only because it was vague and indefinite but also on the ground that the Receiver acted beyond his authority in entering into a stipulation of this character.;