1. This is a plaintiff's revision under Section 25, Small Cause Courts Act. The opposite party was defendant 1 to the suit. Defendants 2 to 4 were his tenants in an occupancy holding. He ejected them under Section 79, Agra Tenancy Act of 1926. On 7th January 1938 he admitted the applicant to the vacant holding on a rent of Rs. 36 per annum. He also took from him a nazrana of Rs. 300 as consideration for conferring occupancy rights upon him under Section 17 of the Act. The applicant thereafter built a masonry well in the holding. Subsequently the U. P. Tenancy Act was passed, which came into force on 1st January 1940, and, in accordance with the provisions of Section 294 of that Act, the ejected tenants--that is to say defendants 2 to 4--were restored to the holding and the applicant was thereby dispossessed. The applicant then raised this action for recovery of Rs. 500. Of this, Rs. 300 re-presented the nazrana and Rs. 200 was alleged to represent the cost of building the well. The suit has been dismissed.
2. Learned Counsel for the applicant does not challenge the finding of the Court below that the claim for compensation in respect to the well was not maintainable in the civil Court. What he pleads is that, as regards the payment of Rs. 300 for conferment of occupancy rights, consideration failed and his client is therefore entitled to recover this amount. Learned Counsel relies on Section 65, Contract Act, which provides:
When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it to the person from whom he received it.
3. It is contended on behalf of the applicant that if a person covenants to do a thing which is lawful and a subsequent Act of Parliament prevents him, from doing it, the covenant is repealed: see Leake on Contracts, Edn. 6, p. 572. But a repealed covenant is not synonymous with a void covenant, and the covenant between the applicant and the opposite party was perfectly valid when it was made. Moreover, the opposite party did all that was required of him under the cove nant, for, he admittedly conferred occupancy rights on the applicant and the latter peacefully enjoyed these rights for about three years.
4. Learned Counsel for the opposite party relies on Debi Dayal v. Baini Ram ('19) 6 A.I.R. 1919 Lah. 142. In that case the defendant, who was the publisher of an Urdu almanac, agreed to publish certain advertisements for the plaintiff in 60,000 copies of the aforesaid almanac and the plaintiff paid an advance of Rs. 660. The advertisements were printed in 60,000 copies as agreed, but thereafter the almanac was confiscated by Government under the Defence of India Act. The continuance of its sale was thereby rendered impossible by causes over which the defendant had no control; and it was held by the Punjab Chief Court that, the defendant having carried out his part of the agreement by printing and placing on the market 60,000 copies of his almanac, it was equitable that the loss should lie where it had fallen. In my opinion, this principle must equally apply to the case which is under my consideration. The opposite party did all that was required of him under the contract. There was naturally no guarantee in that contract against an Act of the Legislature; no covenant that the applicant should have quiet enjoyment of his occupancy rights in this holding contrary to any law which might subsequently be passed, vide Merwanji Mancherji Cama v. Sirdar Ali Khan ('99) 23 Bom. 510. In my opinion the applicant has no claim at law to the refund of the sum of Rs. 300. The application therefore fails and is dismissed with costs.