ABDUL MAJID MIA Versus MOULVI NABIRUDDIN PRAMANIK

1. SAJJAD AHMAD, J .-This appeal arises out of a suit for a declaration for title and khas possession of a holding comprising a piece of land with a but thereon, brought by the plaintiff- respondent against the defendant-appellant, which was dismissed by the first Court (Sub-Judge, Bogra) but decreed on a first appeal by a Division Bench of the High Court of East Pakistan.

2. Before filing his suit, the plaintiff had approached the Rent Controller, Bogra, under section 17 of the East Pakistan Rent Control Act (Act XV1 of 1953), which was then in force, for permission to evict the appellant. This was refused as the appellant denied that he was a tenant under the respondent.

3. An appeal taken to the District Judge, Bogra, against the order of the Rent Controller was also dismissed, and it was directed that the respondent should seek his remedy in a civil Court, if so advised.

4. In the suit that followed, the plaintiff-respondent alleged that he had purchased the disputed premises from its original owner, Dakeshabala Kundu (Defendant No 2) by a registered sale deed dated the 11th of July 1956 (Exh. 2) in lieu of Rs. 7,999. It was further alleged that the defendant-appellant was in occupation of the premises, as a bharatia, on a monthly rent of Rs. 26, which he had paid up to Asar 1368 B. S., but had defaulted to make payment since then. The eviction of the appellant was sought on the additional ground that the latter had forfeited his tenancy by repudiating the plaintiff's title.

5. The appellant, in rebuttal, denied that the plaintiff was a valid purchaser of the suit property. He admitted that, to begin with, he was a monthly tenant having attorned to Dakshabala Kundu as such after the purchasy by him of the good-will of one Radha Ram who was running a shop in the disputed hut, but claimed that since the 1st of Baisakh 1360 B. S., he had become a perpetual tenant of the premises on a yearly rental of Rs. 26 having paid a sum of Rs. 1,500 as salami to Dakshabala Kundu as per amalnama (Exh. D) executed by her in his favour. It was also maintained that pursuant to the amalnzma, he had paid the annual rent of the premises for three running years to Kamakeshya Charan, a grand son and Manager of the aforesaid Dakshabala, who had given him rent receipts Exh. E and Exh. E-1 in token thereof.

6. The learned trial Judge framed three issues in the case, the first as to the maintainability of the suit, the second as to whether the plaintiff-respondent had acquired any right or title in the disputed premises and the third as to the relief to which the plaintiff was entitled. Issue No. I was not pressed at the trial, and on issues Nos. 2 and 3, which were dealt with together, the learned trial Judge has examined the contentions of both the sides as regards their respective status quo the suit premises. He has held that the document (Exh. D-2) on which the plaintiff had relied for his title was collusive and that no consideration had passed under it. The main reason for this conclusion seems to be that Dakshabala was closely tied up with the plaintiff-respondent whom she called "Jamai" (God son-in-law) and that the document (Exh. D-2) was merely a contrivance between the two to bring about the appellant's eviction. The learned trial Judge thought that as Dakshabala was unable to explain what she had done with the large amount of money viz. Rs. 7,999 allegedly received by her from the plaintiff inconsideration for the sale of the disputed premises, she bad probably not received it. The learned Sub-Judge was nonetheless conscious of the fact that Dakshabala was supporting the conveyance of the title in the plaintiffs favour to her own prejudice, and that it was not open to the defendant-appellant, as a stranger, to take objection to it. Alternatively, therefore, the learned Civil Judge has held that even if it were to be accepted that the plaintiff-respondent was a valid transferee of the suit premises, he had acquired nothing more than a rent receiving interest in the same as the defendant-appellant has successfully proved that he had acquired tenancy rights in the premises from Dakshabala by means of the amalnama (Exh. D) before the alleged conveyance in the plaintiff's favour. What seems to have impressed the learned Civil Judge for accepting the defendant-appellant's case for tenancy rights was that the amalanama (Exh. D) bore the thumb-impression of Dakshabala as proved by the opinion of the Finger Print Expert. The further proof accepted in this connection was the receipts Exh. E and E-1 which had also been similarly proved to bear the signatures of Kamakahya Charan, the Manager of Dakshabala, by the opinion of the Handwriting Expert, whom the defendant had examined as a witness in this connection. It was further observed that as all rent receiving interest have been acquired by the Provincial Government of East Pakistan by virtue of a notification issued under the East Bengal State Acquisition and Tenancy Act, 1950, the plaintiff-respondent's right to receive any rent was extinguished. In consequence, the plaintiff's suit was dismissed. In appeal, the learned Judges in the High Court have elaborately examined the evidence both oral and documentary led by the parties, and have reached contrary conclusions both as regards the title of the plaintiff-respondent as well as the status of the defendant-appellant to the suit property. They have held that the plaintiff-respondent is a valid transferee of the suit premises from Dakshabala, as proved by the latter's statement and the kabala (Exh. 2). On the question of the tenancy rights of the defendant-appellant, it was held that Exh. D, which was relied upon for that purpose, did not in the first place appear to be a genuine document and, secondly, it being a lease deed required compulsory registration and was inadmissible in evidence for lack of it.

7. We agree with the learned Judges of the High Court that the reasons given by the trial Judge in rejecting the registered kabala in favour of the plaintiff-respondent were more conjectural than real. Dakshabala, the former owner of the suit premises having clearly admitted the transfer of title in the respondent's favour, the defence that the conveyance deed (Exh. D-2) was collusive or lacked consideration could be of no avail to the appellant. Again, we agree with the learned Judges of the High Court that the defendant-appellant has failed to prove the creation of permanent tenancy in his favour. No serious effort was made by him to prove Exh D on which he had relied for this purpose. The opinion of the Finger Print Expert that the thumb-impression axed on it was that of Dakshabala was at best, a relevant piece of evidence. But that could not be conclusive in the face of the denial by Dakshabala that she had executed the document. Neither the scribe nor any of the marginal witnesses of this document was produced to support its execution. Having seen the original ourselves, we are inclined to think that it is a spurious document. It was not written by a regular deed writer, and the plain paper on which it was written, with revenue stamps affixed on it, adds to its suspicious character. According to its contents, it was plainly a lease deed for a period of more than one year, arid, therefore, it required registration and was inadmissible in evidence for want of it. The learned counsel for the appellant has contended before us that this deed could be utilised under section 49 of the Registration Act for the collateral purpose of proving that the appellant was in possession of the premises as a perpetual tenant. The argument is ex facie fallacious as the appellant was already in possession of the property before the execution of this document and did not gain possession of it under this deed. The result reached by the High Court, is, therefore, clearly correct that the defendant-appellant has failed to prove that he had become permanent tenant of the premises on payment of Rs. 1,500 as salami, as alleged by him. We also agree with the learned Judges of the High Court that accordance to the definition of "rent receiver", as contained in subsection (2) of section 2 of the East Bengal Sate Acquisition and Tenancy Act, 1950, monthly tenancies fall outside the pale of "rent receiving interests" which were acquired by the Government under that Act.

8. The position which stands out is that while the defendant appellant has failed to prove his permanent tenancy rights in the suit property, his status as a monthly tenant was admitted and cannot be denied. In awarding a decree for khas possession, the Darned Judges in the High Court seem to have been influenced by the consideration that the respondent's tenancy was determined after he had repudiated the title of the respondent by setting up a title in the Government and by claiming that he was a permanent tenant of the holding. This finding of the learned Judges with all respect, suffers from an error. The appellant had, at no time, denied the title of his land-lady Dakshabala nor had he received any notice either from her or from the plaintiff-respondent that he was to attorn to the latter in view of the transfer of tile premises in his favour. In setting up a perpetual tenancy in the suit premises, he was claiming a higher title for himself without disclaiming the landlords title. Further, the appellant's plea that after the creation of a permanent tenancy in his favour the landlord had nothing left but a rent-receiving interest, which was acquired by the Government by operation of law, merely expressed his view of the change in law arid did not, amount to a disclaimer of the landlord's title. To work forfeiture, the disclaimer of the landlord's title on the part of a tenant must be unequivocal and some positive act renouncing the relationship of landlord and tenant must be proved to have been committed. Such an action has to be closely examined and not to be readily and loosely interpreted in favour of forfeiture regardless of the intention that motivated that action. If a tenant does not deny his liability to pay rent but asserts a higher status as a lessee, then what is admitted by the landlord, such an assertion does not amount to denial of the landlord's title, nor of the setting up of a title by the defendant in himself-See Amer Krishna v. Nazir Hussain (A I R 1939 Oudh 257) and Venkaji v. Lakshman (I L R 2 Born. 354).

9. Again, in the present case it is to be noted that no notice was served by the respondent on the appellant, as required by section 111-G to convey his intentions to determine the lease on the ground of forfeiture because of the appellant's renunciation of his character as a lessee and for setting up a title in a third person or in himself. His tenancy could not be determined until such a notice was given to him.

10. As the appellant's rights as a monthly tenant of the suit properly subsisted at the time when the present suit was instituted against him, he was entitled to the protection of the East Pakistan Rent Control Act of 1953 which was then in force, and his ejectment could not take place except in the circumstances as envisaged by that Act. That Act has since expired but the East Pakistan Rent Control Ordinance XX of 1963 now occupies the field and lays down the conditions on which the eviction of a tenant like the appellant can take place. But we need not dwell on this point in this judgment as it is for the respondent to choose his proper action by resort to legal remedies if he desires to eject the appellant from the premises in dispute. At present the result is that while we affirm the High Court's decree as far as the title of the plaintiff respondent to the suit property is concerned, we are unable to uphold the same in so far as it ordains delivery of khas possession to the respondent, and we order accordingly. In view of the divided success of the parties we leave them to bear their own costs.

11. R. B. A. Appeal partly accepted.