SM LILABATI DASI, WIDOW OF HARI MOHAN GHOSE Vs. CHITPORE GOLABARI COLTD

JUDGEMENT

(1.) These appeals arise with reference to a series of oases which were instituted by the plaintiffs for the purposes of correcting certain entries in the Record of Rights in which the plaintiffs had been described as settled raiyats in respect of their holdings. The plaintiffs claim that they are raiyats of the holdings at a fixed rate of rent. Seven of these cases were instituted by the Chitpore Golabari Company Ltd. who according to their case acquired their interest in the disputed tenancies by virtue of their purchase of these holdings in 1919. The plaintiffs in the other two suits are tenants whose interests were transferred to the Chitpore Golabari Company after the institution of the suits in question. The defendants were the landlords of the holdings in respect of which these suits were instituted and their contention is that the plaintiffs are ordinary settled raiyats and they maintain that it has not been established that they were tenants of the holdings at a fixed rate of rent. Both the Courts below have found against the defendants who have appealed to this Court.

(2.) The first point which has been urged by the learned advocate for the appellants arises with reference to Suit No. 10247 of 1932 (Appeal No. 1314 of 1935 of this Court). With regard to the lands covered by this particular suit, it appears that the defendants in the suits out of which these appeals arise instituted an ejectment suit (No. 78 of 1930) against the plaintiffs and succeeded in obtaining a decree in that ejectment suit on 3 August 1931. This decree was ultimately confirmed on appeal to this Court on 21 June 1935. It was held then that the plaintiffs in the suit now before this Court were liable to ejectment as trespassers as they were transferees of a non-transferable holding. It has been finally argued by the learned advocate for the respondents that the principle of res judicata cannot apply in this particular case because the same questions were not in issue before the High Court as were in issue in Suit No. 10247 of 1932. In this connexion I have perused the judgment of the High Court dated 21 June 1935 which I have admitted as an additional evidence for the purpose of this appeal in order to enable me to pronounce judgment in this case. I find from a reference to this judgment that the whole question of the status of the plaintiffs- respondents who were defendants in Suit No. 78 of 1930 was fully considered in the litigation which culminated in appeal from Original Decree No. 76 of 1932 and as regards the status of these persons the same questions appear to have been substantially in issue in Suit No. 10247 of 1932. I therefore hold that as regards the subject-matter of Suit No. 10247 the question of the plaintiffs status must be governed by the decision of this Court in the appeal mentioned above and as it was decided in that appeal that the plaintiffs were liable to ejectment it follows that the lands covered by Suit No. 10247 of 1932 cannot be treated as a tenancy in respect of which the plaintiffs were raiyats at a fixed rate of rent. The plaintiffs claim must therefore fail as far as this suit is concerned and the appellants are entitled to succeed in this appeal.

(3.) The main point for consideration in connexion with the remaining appeals is whether or not the plaintiffs-respondents are entitled to the benefit of the presumption as to the fixity of rent arising out of Section 50, Ben. Ten. Act. The Courts below held that the plaintiffs have succeeded in showing that their rate of rent has remained unchanged during the 20 years immediately before the institution of the suits out of which these appeals arise and that they were therefore entitled to the benefits of the presumption mentioned above. It is however contended on behalf of the appellants that this presumption has been rebutted in Suits Nos. 10243, 10244, 10245 and 10248 of 1932 by reason of the findings of the Courts below to the effect that the plaintiffs had acquired occupancy right in the holdings covered by the suits by means of adverse possession. Admittedly as regards these holdings, the transfers on which the plaintiffs base their claim took place in respect of the whole holdings in 1919 before the Bengal Tenancy Act was amended in 1928. It is argued that the continuity of the plaintiffs tenancies was interrupted in 1920 by reason of the proceedings which were instituted in that year in respect of these holdings under Section 145 Criminal P.C. It is urged that the landlords who are the appellants to this Court did not recognize the sales to the plaintiffs of the disputed holdings in 1919 and that at any rate at that time they must be regarded as trespassers. It is, however, admitted that the plaintiffs were allowed to retain possession of their holdings in 1921 as a result of the decision of the Magistrate in the proceedings under Section 145, Criminal P.C. The Magistrate's judgment is dated 24 March 1921. Since that date, the plaintiffs have remained in adverse possession of the holdings in suit and it is argued that the interests which they have acquired in the holdings based on adverse-possession are entirely distinct from those of their predecessors; and it is in fact contended that they have now acquired the status of occupancy raiyats in respect of an entirely new tenancy based not upon their purchases of 1919 but upon their adverse possession dating from February 1920.