Supreme Court: In an appeal filed by the appellant for recovery of possession of certain houses and shops sold without the appellant’s permission, who was the taluqdar of the village, the three-Judges Bench of B.K. Mukherjea*, Vivian Bose and B. Jagnnadhadas, JJ., stated that it was clear that the custom of non-transferability related only to Ryots of the village. The Supreme Court further stated that, if the word ‘Ryot’ was used, in the sense as it normally did, i.e. ‘the agricultural tenants of the village’, then the respondents did not come within that description. They were not also Ryots in an extended sense as meaning persons like carpenters, blacksmiths and grocers who were indispensably connected with the village economy and, form part of the village community.
Thus, the Supreme Court stated that it would be proper to tend the cases back to the Trial Court. The Supreme Court stated that the Trial Judge should proceed on the footing that the appellant’s title to Lalganj Bazar was established and that the custom recorded in the Wazib-ul-arz did not apply to the respondents in these suits. As the respondents did not set up any tenancy right under the appellant, they could not be permitted to raise any such point now.
Background
In the present case, the appellant instituted three suits against respondents, for recovery of possession of certain houses and shops described in the schedules to the plaints on evicting the respondents. The allegations in all the suits, was that Bazar Lalganj, where the disputed shops and houses were situated, was part of an agricultural village known as Datauli Lalganj appertaining to the appellant’s taluqa. Further, under the village custom and customary law of the province, the ryots and shopkeepers residing therein had no right to sell their houses and shops without the permission of the Taluqdar.
It was alleged that the house and shops, which were in dispute were sold without the appellant’s permission. Resultantly, the acts of the vendors amounted to abandonment of the properties held by them, while the vendees, who did not acquire any title by their purchases, were in occupation of them merely as trespassers. It was on these allegations, that the appellant based his claim for recovery of possession of the disputed properties on establishment of his title as proprietor of the village.
The respondents denied the appellant’s title as Taluqdar of the village and the custom of non-transferability set up by him. It was averred that Bazar Lalganj was not a part of Datauli village, where the alleged custom was said to prevail and the custom itself, if it existed at all, was an unreasonable one and had never been given effect to. Further, it was asserted that the inhabitants of Bazar Lalganj had been selling their houses and shops all along without any objection or protest from the appellant or his predecessors and that the respondents were owners of the disputed properties to which inter alia they acquired title by adverse possession.
The Trial Judge held that Lalganj was a town and not a part of the agricultural Datauli village. Since, it was a town, there was a presumption of transferability of the Raiyas’ houses and shops situated therein, and it was for the appellant to establish the alleged custom under which the properties were non-transferable without the consent of the proprietor. Further, it was held that the custom set out in the Wazib-ul-arz and relied upon by the appellant applied only to Raiyas’ houses and shops in the village Abadi and not to Bazar Lalganj which was a marketplace and stood on an entirely different footing.
However, on appeal, the District Judge allowed the appeal and decreed the appellant’s suits differing from the view taken by the Trial Court. It was held that Lalganj was not a town but was a part of Datauli village and even if it was a town, the custom of Datauli village recorded in the Wazib-ul-arz was applicable to it.
Analysis, Law, and Decision
The Supreme Court stated that it was clear that the custom of non-transferability related only to Ryots of the village. Of course, the Lalganj Bazar must be taken to be an integral part of the village, but the custom was applicable to the Ryots only inhabiting the entire area. The Supreme Court further stated that, if the word ‘Ryot’ was used, in the sense as it normally did, i.e. ‘the agricultural tenants of the village’, then the respondents did not come within that description. They were not also Ryots in an extended sense as meaning persons like carpenters, blacksmiths and grocers who were indispensably connected with the village economy and, form part of the village community.
The Supreme Court noted that the appellant had described the respondents both as shopkeepers and ryots, possibly implying that the business that they carried on was essential to administer to the needs of the village itself. However, the Court stated that it appeared from the District Gazetteer, that the bazar mentioned in the Wazib-ul-arz developed and flourished as an independent trade centre quite unconnected with the village. There was considerable road-borne trade in hides, oilseeds, cloth, etc. with Kanpur and other places even before 1901 and in consequence of the growing trade activities of the place, many businessmen had settled therein.
The Supreme Court observed that the Trial court had found that the inhabitants of Lalganj Bazar carried on different avocations and trade in cloth, sugar, grain, iron and other articles and there were even commission agents, amongst them, who import goods from Calcutta. In these circumstances, it was not possible to hold that although Lalganj was a part of Datauli village, the shopkeepers, who were neither agriculturists nor connected with the village economy in any way, were ryots of the village to whom the custom set out in the Wazib-ul-arz could apply. Thus, the Supreme Court stated that the custom set out in the Wazib-ul-arz neither binds the respondents nor gives them any protection against any claim for eviction which the landlord might put forward based on his title.
The Supreme Court stated that the judgments of the court below could not be supported, and the entire approach was wrong. The appellant had established his title to the village where the houses and shops were situated, his claim to possession of these properties would have to be determined in accordance with the principles of the general law and the respondents could only be allowed to raise such pleas in answer to the appellant’s claim, as they expressly raised in their pleadings. Thus, the Supreme Court stated that it would be proper to tend the cases back to the Trial Court.
The Supreme Court stated that the Trial Judge should proceed on the footing that the appellant’s title to Lalganj Bazar was established and that the custom recorded in the Wazib-ul-arz did not apply to the respondents in these suits. As the respondents did not set up any tenancy right under the appellant, they could not be permitted to raise any such point now.
The Supreme Court stated that the question which the court below would consider was whether the possession of the houses and shops by the respondents and their predecessors was of a permissive character or adverse. If the possession was permissive, the only other question that would require consideration was the question of estoppel, that whether the acts or omissions of the appellant estopped him from instituting the suit.
The Supreme Court stated that if the possession was found to be adverse, the court would consider whether the period during which the respondents and their predecessors were in possession of these properties was sufficient in law to create a title in them and extinguish that of the appellant. The suits would be disposed of in accordance with these findings. The Supreme Court stated that it would be open to the Trial Judge to allow the parties to adduce additional evidence if he considered it proper and the costs of all the courts below should be borne by the parties themselves.
[Raja Burkhandi Mahesh Pratap Narain Singh v. Sadhana, (1954) 2 SCC 699, decided on 19-11-1954]
*Judgment authored by- Justice B.K. Mukherjea
Advocates who appeared in this case :
For the Appellant: K.S Krishnaswamy Iyengar and S.P Sinha, Senior Advocates (Bishan Singh and C.P. Lal, Advocates, with them)
For the Respondents: Jagdish Chander and S.B. Mathur (for Shukla and Co.), Advocates.
**Note: Suit for recovery of possession
Sections 5, 6, 7 and 8 of Specific Relief Act, 1963 (‘the Act’) provides for recovering possession of property. Section 5 of the Act dealing with recovery of specific immovable property states that a person entitled to the possession of specific immovable property might recover it in the manner, as provided by the Civil Procedure Code, 1908.
In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752, it was held that,
“in a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him.”