Tinkari Das Vs. Jamuna Bala Dasi - Court Judgment

Salil Kumar Datta, J.

1. This is an appeal by the defendant against a judgment of affirmance. The plaintiff instituted the suit on 26th May, 1965 on the following allegations. The plaintiff had been owner of the tank recorded in C. S. Plot No. 1177 Khatian No. 2268 P. S. Chinsura within the Hooghly Chinsurah Municipality which is the suit property. The defendant executed a deed of lease on 3-11-1961, to which the plaintiff was also a party, taking a settlement of the fishery right of the tank for a period of five years from Baishakh 1368 B. S. to Chaitra 1372 B. S. agreeing to pay rental at the rate of Rs. 525/- per year and municipal taxes. The lease contained a condition that in the event of failure by the lessee to pay annual rental within the year, the lessor will have a right of re-entry on forfeiture of lease without any notice. The defendant did not pay any rent from 1369 B. S. to 1371 B. S. except a sum of Rs. 100/- and under the terms of lease he had no title or interest in the tank and was, therefore, liable to be evicted without notice. The plaintiff accordingly instituted the suit on May 26, 1965 praying for a decree for recovery of possession of the suit property by the plaintiff on eviction of the defendant therefrom.

2. The suit was contested by the defendant who filed a written statement contending inter alia that the suit was bad for want of notice under Section 111(g) of the Transfer of Property Act. It was further contended that the State of West Bengal was a necessary party in the suit and in absence of the State the suit was not maintainable. It was stated that the defendant did not know the contents and purport of the lease as she was an illiterate lady and executed the same without knowing the meaning thereof and if there was any clause of forfeiture for nonpayment of rent the same was without her knowledge. There were further allegations that the rent has been paid regularly upto 1371 B. S. and rent for the year 1372 B. S. was in deposit with the lessor. It was further stated that the plaintiff had no locus standi to evict the defendant from the suit premises as the disputed fishery vested in the State of West Bengal since Baishak 1, 1362 B. S. For these reasons the defendant submitted that the suit should be dismissed.

3. It appears that on an application by the defendant one Jamuna Bala was added as a pro forma defendant as the purchaser of the plaintiff's interest in the suit property. On her prayer, she was transferred to the category of the plaintiff as plaintiff No. 2. On May 20, 1966 she applied for amendment of the plaint incorporating that the defendant's lease had in the meantime expired by efflux of time and eviction of the defendant was also sought on that basis. The said amendment was allowed.

4. On a trial on evidence the learned Munsif found that the plaintiff was not entitled to a decree on the basis of the forfeiture clause in absence of a notice. The trial Court further found that the plaintiff's interest in the suit property did not vest in the State of West Bengal and the plaintiff had the locus standi to institute the suit and to obtain the decree as prayed for. It was further found that the defendant was entitled to no relief on the ground of determination of lease by efflux of time. The suit was accordingly decreed.

5. An appeal was preferred against this decision by the defendant and the appellate Court affirmed the judgment of the trial Court with some amendment in regard to the findings about Ext. 1 which is the lease deed. The appellate Court also held that the plaintiff was not an intermediary and his interest did not vest in the State. It was further held that the suit for eviction could not succeed on the ground of forfeiture in absence of notice contemplated under Section 111(g) of the Transfer of Property Act. The Court, however, found that the defendant simply took the settlement of fishery right and such right could be leased out under the provisions of Transfer of Property Act. Accordingly the tenancy was governed by the said Act and the defendant was liable to be evicted on the ground that the defendant's tenancy had expired by lapse of time. It may be mentioned here that there was a cross-objection filed by the plaintiff against the findings on Ext. 1 which according to the trial Court was not read over or explained to the defendant nor understood by her. The appellate Court found that the said finding of the learned Munsif could not be sustained and accordingly the cross-objection was allowed to the above extent modifying the finding of the learned Munsif about Ext. 1. The appeal was thus dismissed and the cross-objection was allowed as indicated above. The present appeal is against this decision.

6. Mr. S. C. Das Gupta learned Advocate appearing for the defendant appellant has raised several grounds in support of the appeal. His first contention is that the Court cannot take cognisance of a subsequent event which has the effect of bringing in a new cause of action for the suit. According to Mr. Das Gupta the suit originally was instituted with the cause of action that the defendant's tenancy was determined by forfeiture and relief was sought on that basis. Thereafter by subsequent amendment the cause of action was sought to be changed by introducing a case on the expiry of the lease by efflux of time which according to Mr. Das Gupta, is not permissible in law.

7. Mr. Ranjit Kumar Banerjee learned Advocate appearing for the plaintiff respondent disputed the above contention and referred to the several decisions which will be considered presently contending that the Court was entitled to take into consideration such subsequent events for the purpose of shortening the litigation and doing complete justice to the parties. Mr. Banerjee has referred to the case of Ram Ratan v. Bishnu-chand, (1907) 11 Cal WN 732 = 6 Cal LJ 74 in which it was held that subsequent events could be taken into consideration for the purpose of shortening litigation and ensuring justice to all. The Court quoted with approval the decision in Mills v. Green, (1895) 159 US 651 in which it was held that the Court not only has the power but the duty to take notice of subsequent events which have happened during the pendency of the appeal and that such events when not appearing on the record may be proved by extraneous evidence. In Raicharan v. Biswa-nath, AIR 1915 Cal 103, the Court referred to other cases in which subsequent events could be taken in consideration affording relief to the parties on the basis of altered conditions. The doctrine was to be applied where it is shown that the original relief claimed had by reason of changed circumstances become inappropriate or where it was necessary to base the decision of the Court on altered circumstances in order to shortening litigation or to do complete justice between the parties. The Federal Court in Shyamakanta v. Rambhajan, AIR 1939 PC 74 following the principle in Quilter v. Mapleson, (1882) 9 QBD 672 observed that the appellate Court could grant relief according to the new law which had come into force in the meantime and such power was given to Court under Order 41, Rule 33 of the Code. In Lachmeswar v. Kesheswarlal, AIR 1941 FC 5, it was held that in exercise of the appellate jurisdiction the Court has power not only to correct judgment but to make such disposition of the case as justice requires and in determining what justice does require, the Court is bound to consider any change either in fact or in law which has supervened since the judgment was delivered. In Surinder Kumar v. Gian Chand, : [1958]1SCR548 , it was held that apart from the power to admit additional evidence, the Court in deciding the appeal has to take the circumstances as they are at the time when the appeal is being decided and the judgment in rem having been passed in favour of the appellant, it is necessary to take additional fact into consideration. In Nair Service Society v. K. C. Alexander, : [1968]3SCR163 it was held that the fixed principle is that a suit should be tried on the original cause of action and this principle governs an appeal being a continuation of the suit and the new pleas are not to be entertained but this rule is subject to above exceptions in which change of circumstances involved within the original cause of action has to be considered by the Court allowing amendment of pleadings. Lastly, it has been held in M/s. Laxmi & Co. v. Anantaram Deshpande, : [1973]2SCR172 as follows:

'Where the original relief has become inappropriate by subsequent events, the Court can take notice of such changes. If the Court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the Court also takes notice of such event ..... The Court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice.'

7-A. On the principle of law enunciated as above it would appear that the plaintiff No. 2 filed an application for amendment of the plaint praying for recovery of possession also on the ground of efflux of time as the lease which was for a period expired during the course of litigation before the trial Court. The amendment sought for was self evident on record and in my opinion, for shortening the litigation and for ends of justice the Court is entitled to take into consideration this subsequent events even if there was a change of the ground of eviction while the nature and character of suit, which was for recovery of possession of the suit property on eviction of the defendant, was not in any way affected. For these reasons, in my opinion, the courts below were justified in taking into consideration this subsequent event and in passing a decree on that basis.

8. It is now to be considered whether the decree is otherwise maintainable. Mr. Das Gupta has contended further that the interest of the plaintiffs in respect of the suit land was that of the intermediary and that interest having vested in the State the plaintiffs were not entitled to sue for recovery of possession on eviction of the defendant. Mr. Das Gupta contended that the landlords' interest has to be investigated which was not done in the particular case and that being a vital question should firstly be determined. Under the West Bengal Estates Acquisition Act, the intermediary has been defined as meaning a proprietor or tenure holder or under-tenure holder or any other intermediary above a raiyat or a non-agricultural tenant. The proprietor has not been defined in Estates Acquisition Act but under its Section 2 of Sub-section (p), the definition given in the Bengal Tenancy Act will govern the definition of proprietor. 'Proprietor', according to Section 3 Sub-section (II) of the Bengal Tenancy Act, means a person owning whether in trust or for his own benefit, an estate or a part of an estate. In Sub-section (4) thereof 'estate' has been defined as meaning land included under one entry in any of the general registers of revenue paying lands and revenue free lands prepared and maintained under the law for the time being in force by the Collector of a District and includes government khas Mahal lands and revenue free land are not entered in any register. The record of right of the suit khatian, Ext. 3, shows that the Mitras were holding as Dakhalkar holding No. 795 under the Collector for the King Emperor whose extent of interest in the Superior Khatian was mentioned as Re. 1/-. This khatian by itself would show that the Mitras were holding the land under the Khasmahal in holding No. 795 and the interest of the superior landlord was 16 annas as recorded therein. That being the position, the record of rights indicated that the interest of Mitras which came ultimately to the plaintiffs was that of Dakhalkar under the Khasmahal and such interest was not an intermediary interest as contemplated in law. The definition of tenure holder again is given in Section 5 (1) of the Bengal Tenancy Act which means primarily a person who has acquired from a proprietor or from another tenure holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it. The record of rights indicate that the Mitras were holding the land as Dakhalkar which, as has been held in Asrurekha v. Diptimay, (1968) 70 Cal WN 1079, is the interest of a non-agricultural tenant and not a raiyati interest. That being the position, it cannot be said that the plaintiffs' interest was that of a raiyat having an under raiyat under them. The interest of the plaintiffs as non-agricultural tenant did not vest in the State as has been held in Shibsankar Nandy v. Prabartak Sangha, : [1967]2SCR558 . That being the position, it is not possible to accept the contention of Mr. Das Gupta that the interest of the plaintiff has vested in the State.

9. Accordingly, viewed in all aspects the plaintiffs were entitled to a decree as decreed by the Courts below.

10. For these reasons this appeal fails and is dismissed. There will be no order as to costs.