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Har Sarup Vs. Tohfa Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All534
AppellantHar Sarup
RespondentTohfa Singh and ors.
Excerpt:
- - order 32, rule 7 clearly says that the sanction should be recorded in express terms. the contract was a good one, so far as it was entered into. both the arguments are good so far as they go......the plaintiff instituted a suit, in the year 1920, for ejectment against two persons tohfa singh and his minor brother ram chandra, under the guardianship of tohfa singh. in that suit both the defendants pleaded that they were occupancy tenants, and that there were other people besides themselves who were tenants of the holding. the plaintiff thereupon made an application that those people whoso nonjoinder had been pleaded, namely bijai singh and others might be made a party to the suit. the parties, after the joinder of additional defendants, came to terms and an agreement was drawn up on 2nd august 1921. nothing, however, came out of that agreement, because the suit was dismissed for default. when it was restored on 9th august 1921, it was dismissed in terms of a.....
Judgment:

Mukerji, J.

1. This is a plaintiff's appeal arising out of suit for rent under the following circumstances: The plaintiff instituted a suit, in the year 1920, for ejectment against two persons Tohfa Singh and his minor brother Ram Chandra, under the guardianship of Tohfa Singh. In that suit both the defendants pleaded that they were occupancy tenants, and that there were other people besides themselves who were tenants of the holding. The plaintiff thereupon made an application that those people whoso nonjoinder had been pleaded, namely Bijai Singh and others might be made a party to the suit. The parties, after the joinder of additional defendants, came to terms and an agreement was drawn up on 2nd August 1921. Nothing, however, came out of that agreement, because the suit was dismissed for default. When it was restored on 9th August 1921, it was dismissed in terms of a compromise, to which only the plaintiff and the original defendants Tohfa Singh and Ram Chandra were parties. It was agreed that the defendants should have the status and position of occupancy tenants, but they should pay an enhanced rent, namely one of Rs. 85 per annum, while the previous rant was only Rs. 62-4-0.

2. After this the suit was instituted, out of which the present appeal has arisen. This suit was for recovery of arrears of rent for the years 1329 to 1331 and was against Tohfa Singh and Ram Chandra alone. For the year 1329 Fasli rent was claimed at the rate of Rs. 62-4-0 a year, while for the succeeding years the claim was made at the rate of Rs. 85 a years Tohfa and Ram Chandra again pleaded that some other persons, namely Bijai Singh and others were interested in the holding and should have been impleaded. They also pleaded that the rate of rent realizable was Rs. 62-4-0 a year and not Rs. 85 a year, claimed for two years. Again the plaintiff agreed to make Bijai Singh and others parties. After they had been impleaded, the plaintiff made an application to the Court of first instance asking for the framing of an issue on a point, namely whether Bijai Singh and others were really tenants of the holding. No such issue was framed. The suit was decreed against all the defendants at the rate of Rs. 85 a year on the ground that the defendants having taken the benefit of the status of occupancy tenants were bound to pay the enhanced rate of rent.

3. The defendants went in appeal before the learned District Judge. That Court was of opinion, that the plaintiff could not ask for an issue as to the status of Bijai Singh and others, nor could he ask for enhanced rent. The learned Judge pointed out, what was an evident error on the face of the record, that the plaintiff had been given a decree for arrears of rent for the year 1329 at the rate of Rs. 85 per annum, while he had claimed less. In the result, the suit stood decreed at the rate of Rs. 62-4-0 a year, against all the defendants including Bijai Singh and others. The plaintiff has come in second appeal. At the outset I may point out that no objection has been taken in the memorandum of appeal as to the omission on the part of the Court of first instance to frame an issue as to whether Bijai Singh and others were also tenants of the holding. It must be taken, therefore, that Bijai Singh and others, the added defendants, are tenants of the holding.

4. It has been contended by the learned Counsel for the appellant that although no express order of the Court was obtained sanctioning the compromise on behalf of the minor, in the ejectment suit, the Court, in adopting the compromise and making a decree on foot of it, really sanctioned the compromise. This argument was advanced because the Court below held that Ram Chandra could not be held bound by the compromise for want of sanction under Order 32, Rule 7, Civil P.C. I am unable to accede to the argument of the learned Counsel for the appellant. Order 32, Rule 7 clearly says that the sanction should be recorded in express terms. I agree, therefore, with the Court below in holding that the compromise of 1921, in the ejectment suit of 1920, is not binding on Ram Chandra. The compromise cannot be binding on Bijai Singh and others, for the simple reason that they were not at all parties to it.

5. Next it has been argued by the learned Counsel for the appellant that in any case Tohfa Singh, who was an adult and a party to the compromise, should be held bound by it. For the respondents the learned Counsel has argued that the compromise took it for granted that it was binding not only on Tohfa Singh but also on his co-tenant Ram Chandra. He further argued that the compromise having been entered into on the understanding that the respondent Tohfa Singh alone would not be liable, the compromise was vitiated and could not be enforced as a contract. I am of opinion that the respondents' counsel's argument is not sound. The contract was a good one, so far as it was entered into. All that was wanted was to obtain a sanction of the Court to bind Ram Chandra. There was no mistake of fact. There was not even a mistake of law, in the entering into of the compromise. The asking for sanction of the Court was something outside the contract. Even if it be conceded that the asking of the sanction was a part and parcel of the contract, in order to bind Ram Chandra, but the parties were ignorant of this provision of the law, the utmost that can be said is that the parties were under a mistake of law as to the binding nature of the agreement on Ram Chandra. This would not vitiate the compromise in its entirety. In any view of the case, the contract is binding on Tohfa Singh. Where several tenants enter into an agreement as to rent with the landlord, every one of the tenants is personally liable for the rent. Section 43, Contract Act, would apply. It may be and possibly would be the case, that where only some, out of several joint tenants, are sued for arrears of rent, the decree would be one which could not be executed by the ejectment of the entire body of tenants from the holding. But there would be no bar to the enforcement of the decree personally against the tenant sued. A similar view was taken by the Patna High Court in the case of Raghunath Das v. Baleshwar Prasad A.I.R. 1927 Pat. 426. I hold that Tohfa Singh would be liable if other issues in the case be decided in favour of the appellant.

6. The learned Counsel for the respondents has argued that Tohfa Singh cannot be bound by the compromise as to the enhancement of rent, because there was no registered document enhancing the rent. On the other hand, it has been argued on behalf of the appellant that the terms of the compromise having been incorporated in the decree, the decree itself was evidence in the case, even without being registered. Both the arguments are good so far as they go. The rule as to compromise is contained in Order 23, Rule 3, Civil P.C. It lays down that where there has been a lawful compromise, comprising of the matter in suit and matters extraneous to the suit, the compromise would be recorded, but the decree would be made in accordance with the compromise, in so far as it affects the suit. The suit in this case was one for ejectment, and only that portion of the compromise was relevant to the suit which gave the defendants Tohfa Singh and Ram Chandra the status of an occupancy tenant. The result was that the suit for ejectment was dismissed. But the decree could not and did not declare anything as to what should be the future rent.

7. It is true that the decree can be put into evidence to prove the agreement between the parties that they had agreed that the enhanced rent would be paid from the date of the compromise. But under the law, where a yearly rent is fixed, the lease can be created only by a registered instrument and not by anything else. A decree, too, no doubt, would have done, but, in this case, the decree did not declare and could not declare the rent. For the validity of the compromise as to rent, therefore, the parties have to fall back on the compromise itself, which, being unregistered, could not operate as a lease fixing a yearly rent. The result is that the compromise is not binding on Tohfa Singh. I may point out, as the learned Judge in the Court below has pointed out, that the verification of the compromise before the Tahsildar, even if it be accepted as a verification under Section 97, Act 2, 1901, would be of no avail to the plaintiff. The operation of Section 97 is restricted to a lease or agreement not exceeding ten years. In the present case, the rent, it was agreed, was to be permanently fixed.

8. I have been asked by the learned Counsel for the appellant to declare that the compromise granting a status of occupancy tenants on Tohfa Singh and Ram Chandra is not binding on the plaintiff. This is a point on which no controversy arises, in the present appeal. I have held that the compromise so far as it affected adversely Ram Chandra was not binding on him. I have held that the compromise as to rent is not binding on Tohfa Singh. I have held that the compromise is not binding on Bijai Singh and others, who were no parties to it. But all these are matters relating to the rent and not to the question of occupancy rights. Whether the compromise can be enforced against the plaintiff, in so far as he purported to confer occupancy rights, on the two original defendants Tohfa Singh and Ram Chandra, while it has been held to be not binding as to its remaining provision, is a matter into which I need not enter. The reason, I have already given, namely that the question does not directly arise? The result is that the appeal fails and is hereby dismissed with costs. Before leave the case I must compliment the learned Counsel on both sides for the very clear way in which they have argued the appeal.


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