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Pandu Mahipat Vs. Shivshankardas Shivlaldas - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 903 of 1926
Judge
Reported in(1929)31BOMLR335; 118Ind.Cas.702
AppellantPandu Mahipat
RespondentShivshankardas Shivlaldas
Excerpt:
.....from the current year... from you.... i shall go on paying the amount of assessment...from year to year as long as i cultivate the lands.... i shall deliver the said numbers without any objection at any time you may ask me to vacate and deliver the same to you.' in a suit on the lease, it was objected that the lease was inadmissible in evidence for want of registration :-;that the lease did not require registration, as it did not create a lease of immovable property from year to year but constituted a tenancy at will.;jagjivandas javherdas v. narayan (1884) i.l.r. 8 bom. 493; jivraj gopal v. atmaram dayaram (1889) i.l.r. 14 bom. 319; khuda bakhsh v. sheo din (1886) i.l.r. 8 all. 405; and ratnasabhapathi v. venkatachalam (1891) i.l.r. 14 mad. 271, followed.;dhurabhai bhuldas v...........17(d) of the indian registration act, inasmuch as they are leases of immovable property from year to year, and reserve a yearly rent. the case law on the subject of leases is voluminous, but each case must be decided on its own merits according to the terms of the lease in question. now the leases in question are of a somewhat peculiar nature, and will have to be set out. the first lease which was passed in 1897, and may be taken as typical, says: 'i have taken the land of the above two numbers for cultivation from the current year 1897-98 from you,' and after reciting the amount to be paid by two instalments, and the dates of those instalments, it says : 'thus i shall go on paying the amount of assessment as stated above from year to year so long as i cultivate the lands,' and.....
Judgment:

Baker, J.

1. These are three companion appeals which may be disposed of in one judgment. They arise out of three suits brought by the Jahagirdar of; Nandurbar in Khandesh against certain tenants to recover possession of the lands on the basis that they are annual tenants under rent notes passed by them to the landlord. The tenants set up a permanent tenancy, which both the Courts below havei found not proved, and the tenants have made these three second appeals. The first contention raised by the learned pleader for the appellants is that the leases in question are compulsorily registrable under Section 17(d) of the Indian Registration Act, inasmuch as they are leases of immovable property from year to year, and reserve a yearly rent. The case law on the subject of leases is voluminous, but each case must be decided on its own merits according to the terms of the lease in question. Now the leases in question are of a somewhat peculiar nature, and will have to be set out. The first lease which was passed in 1897, and may be taken as typical, says: 'I have taken the land of the above two numbers for cultivation from the current year 1897-98 from you,' and after reciting the amount to be paid by two instalments, and the dates of those instalments, it says : 'Thus I shall go on paying the amount of assessment as stated above from year to year so long as I cultivate the lands,' and then after referring to the boundaries, it says: 'I shall deliver the said numbers without any objection at any time you may ask me to vacate and deliver the same to you.' The second lease is in somewhat similar terms, reciting 'I shall go on paying every year Rs. 30-4-6,' and ends by saying : 'I shall deliver the said land into your possession whenever you may demand possession thereof.' Both the Courts below have relied on certain rulings of this Court as showing that these leases create only an annual tenancy, and are not therefore compulsorily registrable. The learned pleader for the appellants has relied upon the case of Dhurabhai Bhuldas v. Mohanlal Maganlal I.L.R.(1917) 41 Bom. 458. Before the lower appellate Court two other cases, viz., Mania v. Lallubhai (1900) 2 Bom. L.R. 488 and Bai Sona v. Bai Hiragavri : (1926)28BOMLR552 , were also relied on. Those cases were held by the learned District Judge not to apply to the facts of this case, and as those two cases have not been cited in this appeal, I do not propose to consider them. As regards the case of Dhurabhai v. Mohanlal it is quite true, as contended by the learned pleader for the appellants, that the cases on which the respondent landlord has relied in this case were all considered. They were all considered and distinguished, for, as I have already said, in every case regarding landlord and tenant, we have to be guided by the terms of the particular lease in question. Now the terms of the lease in Dhurabhai v. Mohanlal have, in my opinion, been correctly appreciated by the District Judge in the present case. In that case the landlord had the right of re-entry on the occurrence of a particular named event, that is to say, the practice of a specified fraud by the tenant. The exact words used in the lease were : 'If we say anything false or unfair or if you come to hear of any fraud or deceit on our part or if we practise such fraud or deceit, we will restore possession of the fields to you as soon as you ask us to do so,' And it was held that this clause prevented the landlord from having authority to resume possession at any moment dictated by his own mere will or caprice, and it was held that therefore the intention of the parties was to create by this document an interest by way of lease extending beyond one year. No such clause occurs in the present lease, the terms of which I have already given. And the lease is practically on all fours with that referred to in Jagjivandas Javherdas v. Narayan I.L.R(1884) . 8 Bom. 493 in which it was held that a kabulayat under which the tenant might claim possession of the land for one year, but was to pay rent to the landlord so long as the landlord might leave the land to the tenant, did not require registration. That case followed the case in Apu Budgavda v. Narhari Annajee (1878) 3 Bom. 21. A similar case is in Jivraj Gopal v. Atmaram Dayaram I.L.R(1889) . 14 Bom. 319 and there is also a case of Khuda Bakhsh v. Sheo Din I.L.R.(1886) All. 405 which is also in point. In that case it was held that the two leases created no rights except those of tenants at will inasmuch as the clause common to both to the effect that at any time at the will of the lessor the lessees were to give up the lands at fifteen days' notice governed all the previous clauses, and the defendants could be asked to quit at any time before the lapse of the term at fifteen days' notice. So also in the present case it was in the power of the landlord to determine the lease at the end of the year or even before, the tenants having agreed to deliver possession whenever possession was demanded. Another case relied on by the respondents is Ratnasabhapathi v. Venkatachalam I.L.R.(1891) Mad. 271 where a lease deed contained & clause whereby the tenancy thereunder was absolutely determinable at any moment at the option of the lessor, and it was held that such a deed was not compulsorily registrable, notwithstanding that it also contained provisions for an annual rental and for payment of rent in advance for each year, provisions which, had they stood alone, would have raised the presumption that a tenancy exceeding a year was contemplated, and this case follows and approves Jagjivandas Javherdas v. Narayan. In these circumstances, I agree with the view taken by the learned District Judge that the leases in question do not require registration, and do not create a lease of immovable property from year to year, but constitute a tenancy at will.

2. The nest question is whether the defendants have proved permanent tenancy, and in this connection the learned pleader for She appellants has desired to refer to certain cases decided between the respondent Jaghirdar and certain other tenants in other villages, on the ground that in those cases, although not inter partes, the relation of the Jaghirdar to his tenants and the right under which he held his Jaghir consisting of four or five villages was decided, and it is contended that this judgment will be relevant under Section 13 of the Indian Evidence Act, And for that purpose he has relied on the case in Lakshman Govind v. Amrit Gopal I.L.R(1900) . 24 Bom. 591. In Lakshman Govind v. Amrit Gopal, three brothers were parties to the suit in which a relinquishment by one brother of his share in favour of the other two brothers was set up. The plaintiffs, who were assignees of the interest of one brother, and had sued to recover by partition his one-third share, relied upon the judgments of the former suit brought by certain creditors against their transferor in which it had been decided that the release pleaded in the present suit was a fraudulent transaction, and that judgment was held admissible under Section 13 of the Indian Evidence Act. The present case, however, is quite a different one. The suit a between the Jaghirdar and his tenants in other villages were decided on many considerations which do not arise in the present case. Apart from the form of the lease, which may have been the same, there were certain considerations arising from the facts that the tenants in those cases had been long in possession of the land, and had treated it as their own by selling it, mortgaging it, and sub-letting it. All these factors are absent from the present case, and I do not think that those judgments, which are not inter partes, can be relevant in the present case under the ruling in Seethapati Rao Bora v. Venkanna Doram I.L.R(1922) . 45 Mad. 332 but apart from that, in the present case the defendants set up a permanent tenancy, which they have not been able to prove, and the lower Courts have found as a finding of fact that this permanent tenancy is not proved. There is evidence in the present case that other tenants were on the land before they came into it, and that in fact they came on to the land under the Kabulayats in suit, nor have they exercised any rights of ownership over it, nor is there any entry in the Record of Rights showing any claim or right on their part.

3. In these circumstances, I do not see any reason to differ from the view taken by the lower appellate Court, which has been shortly expressed at the close of its judgment that the defendants have failed to prove the grant which they set up by one of the plaintiffs' ancestors, that the Record of Rights entries are against them, and that, therefore they have not proved that they are permanent tenants.

4. The result is that the decrees will be confirmed in all the three cases, and the three appeals dismissed with costs.


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