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Janakinath Roy and anr. Vs. Mohendra NaraIn Roy Chaudhury - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal94
AppellantJanakinath Roy and anr.
RespondentMohendra NaraIn Roy Chaudhury
Cases ReferredParshan Kuer v. Tulsi Kuer
Excerpt:
- .....the defendant having purchased in 1330, the plaintiffs sue to eject him. the defence is that the tenure is permanent and transferable. the learned additional district judge on appeal has agreed with the trial court in holding that the dowl kabuliyat created a non-permanent and non-transferable tenure, but he has found that as the result of a compromise arrived at in a rent suit of 1911 the tenure in suit has become permanent and transferable. he has, therefore, reversed the decree of the trial court and dismissed the suit. the plaintiffs now come in a second appeal.2. the first point taken on behalf of the appellants is that the learned additional district judge is wrong in holding that the vakatatnama exh. j, can be treated as secondary evidence of the solenama in the aforesaid rent.....
Judgment:

S.K. Ghose, J.

1. The plaintiffs who are the purchasers of a patni taluk in execution of a mortgage decree, allege that the defendants vendors held a tenure under patni and created by a dowl kabuliyat bearing the date 19th Aswin 1249. According to the plaintiff's case the tenure is non-permanent and non-transferable. The defendant having purchased in 1330, the plaintiffs sue to eject him. The defence is that the tenure is permanent and transferable. The learned Additional District Judge on appeal has agreed with the trial Court in holding that the dowl kabuliyat created a non-permanent and non-transferable tenure, but he has found that as the result of a compromise arrived at in a rent suit of 1911 the tenure in suit has become permanent and transferable. He has, therefore, reversed the decree of the trial Court and dismissed the suit. The plaintiffs now come in a second appeal.

2. The first point taken on behalf of the appellants is that the learned Additional District Judge is wrong in holding that the vakatatnama Exh. J, can be treated as secondary evidence of the solenama in the aforesaid rent suit of 1911. It appears that that was a suit for rent at the rate of Rs. 269. The predecessors of the defendant claimed abatement of rent on the ground of diminution of area and suspension of rent on the ground of dispossession. The suit was ultimately decreed on compromise by which the rent was reduced to Rs. 207 odd. The decree and solenama are not now available. But the defendant relies on a vakalatnama which is marked Ex. J. This document contains certain terms which are now put forward as the terms of the compromise. As the original record of the rent suit has been destroyed the learned District Judge considers Ex. J. to be secondary evidence of the solenama. This is obviously against the terms of Section 63, Evidence Act, and the learned advocate for the respondent admits that Ex. J. is not admissible as secondary evidence. Thus the position is that as regards solenama neither primary nor secondary evidence is available. The only other evidence is the register of suits Ex. N. which merely contains an entry to the effect that the suit was decreed on compromise. For the respondent, it is contended, that there is the deposition of one Upendra Mohan Ghosh Chaudhury who is defendant's witness 3 and who was one of the defendants in the rent suit of 1911. He was, however, no party to the vakalatnama. The learned advocate for the respondent argues that the vakalatnama is at least admissible as admission on the part of the plaintiff's predecessors. But admission of what? It cannot be admission of the terms of the compromise which has not yet come into existence and there the matter ends. Thus it seems to me that there is no evidence to prove the terms of the solenama, on which the defence case of permanency and transferability rests. This point therefore must be decided in favour of the plaintiffs appellants.

3. Another point that may be considered is that, conceding that the vakalatnama is evidence of the terms of the compromise, did those terms really mean that the tenure was being converted into a permanent and transferable one? The learned trial Court has treated the matter as follows:

Exhibit J shows among their things that the contract was that though the term of the kabuliyat had expired and the rent and the lands had diminished, still in other respects the terms of the kabuliyat wore to remain intact and that thenceforward the tenants defendants were to hold the lands, and the rent be meadi i.e., without term by succession. The defendant's learned pleader wants to have the words 'warishen krame and bameadi' construed to mean a permanent tenancy. That is not so. These words are clear indication to show that the jama was not permanent and that the tenancy was a tenancy at will to be extinguished by the landlord after one year's notice, if necessary. If the tenure wore indeed permanent one there was nothing to prevent the parties from having it so described by clear and unambiguous terms. That this had not been done shows that it is not such a tenure.

4. I may say at once that I am in entire agreement with this reasoning. It has been contended that the word 'be meadi' really means not terminable, in other words, permanent and I am referred to the case of Dinanath Kundu v. Janakinath Roy : AIR1928Cal392 . But that case is different on the facts.

5. It has been contended that the Courts below were wrong in taking the view that the 14 jamas, out of which the jama in question was constituted, were not permanent and transferable. In support of this I am referred to the dowl kabuliyat Ex. 1. It shows that the executants of the kabuliyat had purchased certain jamas in 1822, 1833 and other years and that they were asking for mutation of their names in 1842. It is contended that this shews that these jamas were at least transferable. But this does not seem to follow. It appears that the landlord accepted rent in respect of these jamas from the purchasers. But it was in 1842 that mutation of names was asked for the first time and the result was this kabuliyat which was limited to a term of eight years. The cases of Upendra Krishna Mondal v. Ismail Khan Mohamad [1905] 32 Cal. 41, Nil Ratan Mandal v. Ismail Khan Mahomed [1905] 32 Cal. 51 to which I am referred on behalf of the respondents, were based on much stronger grounds. It is contended that the kabuliyat itself was not limited to the period of eight years, but that only a certain portion of the rent was remitted for that term. I do not think that the document would bear this construction. The concluding words clearly show that the kabuliyat was executed for a term of eight years; and this is supported by the document Ex. J., if it is at all to be considered.

6. In behalf of the defendants respondents it is contended that the learned Additional District Judge was in error in holding that the defendant could not acquire a permanent right by adverse possession. It is pointed out that in 1896 certain applications were filed on behalf of the predecessors of the defendant going to show that they were claiming a permanent tenancy right and that in the finally published Record-of-Rights of 1913 the tenure was also described as permanent. But the position here is that the tenant was in possession as tenant as the result, first of the kabuliyat which was executed in 1842, and later on as the result of the arrangement which was arrived at in the rent suit of 1911. So long as the tenant did not transfer his tenancy, the question of interference by the landlord did not arise: see, for instance, Mahamed Mumtaz Ali Khan v. Mohan Singh A.I.R. 1923 P.C. 118, Birendra Kishore v. Mahamed Doulat Khan [1918] 22 C.W.N. 856. The defendant's purchase was only in 11330, and so it is not possible that he could have acquired a permanent and transferable right by adverse possession.

7. My findings on the above points are sufficient to show that the appeal must succeed. It is unnecessary therefore to deal with the other points that have been raised. The decree of the lower appellate Court is set aside and that of the trial Court restored. The plaintiffs appellants will get their costs of this-appeal before the lower appellate Court.

Pankridge, J.

8. I agree. With regard to the alleged permanency of the tenure it may very well be urged that this is a question of fact and we are bound by the findings of fact of the lower appellate Court. But as the case has proceeded it has become necessary to investigate the question on its merits. I am satisfied that the tenure in respect of which the earlier kabuliyat was executed was not a permanent tenure for the reasons given by the Court below, and by my learned brother. The judgments of the Court below have satisfied me that no title to permanent tenure has been acquired by the defendant or his predecessor by adverse possession. Therefore, as the Court below has pointed out, the only ground on which the defendant can claim permanency is the compromise of 1912. Now, I am clear that the trial Court was in error in admitting the document Ex. J a vakalatnama, signed by the administrator acting on behalf of the predecessors of the defendants. I do not think that it is sufficient answer to the argument advanced here that no objection was taken to its admissibility in the trial Court. It appears to me to be one thing when a litigant takes no objection to a document which is tendered for the purpose of convenience and there is no doubt that if any objection were taken the strict method of proof would be employed; in such cases it is clearly wrong that the litigant should be permitted in the appellate Court to insist upon strict proof which he did not require in the trial Court. But the position is not the same where, as here, the document is inadmissible and unless it is admitted there is not any alternative method of proving it. In my opinion it is certainly not necessary evidence. Secondary evidence was tendered inasmuch as one of the defendants spoke to the fact of the compromise but was apparently not in a position to speak to its terms from independent recollection. No attempt was made to satisfy any of the conditions precedent which would have justified him in refreshing his memory from the vakalatnama. Nor indeed was the vakalatnama employed by the defendant for that purpose. It was possibly an error in tactics on the part of the plaintiffs to cross-examine the witness as to the contents of the vakalatnama. But I do not think that this would materially alter the position for it is upon the vakalatnama and not upon the oral deposition with regard to the contents of the solenama that the learned Judge in the Court below has based his judgment. In these circumstances it appears to me that there is no evidence as to the contents of the solenama.

9. With regard to the other points raised I am by no means satisfied by the appellant's argument on the question of the presumed contents of the decree. It seems to me that it is probably right to say that inasmuch as the code specifically requires that the compromise should be recorded, in the absence of any evidence to the contrary, it may be presumed that record was made of the compromise, and if such record was in fact made it appears to me that the decision of the Privy Council in the case of Hemanta Kumari Debi v. Midnapur Zemindary Co. A.I.R. 1919 P.C. 79 is an authority for the proposition that the terms of the compromise, even although not concerned with the operative part of the decree, for the purpose of Section 17, Sub-section 2, Clause (6), Registration Act need not be registered. At the same time I am inclined to agree with the contention of the appellant based on the fact that this saving clause has no application to the case of a lease which falls under Clause (d), Sub-section 1, Section 17, Registration Act. Lease:

is not expressly defined in the Registration Act. It is denned in Section 105, T.P. Act and although I apprehend this definition is strictly applicable only for the purposes of that Act:

'lease' in its ordinary significance bears much the same meaning as it does in the section to which I have referred and it includes leases made in perpetuity. Therefore, I consider that if we regard the contents of the solenama as proved and if we regard that as the respondent would urge as creating a tenancy in perpetuity even so I hold that the solenama is not admissible in evidence for want of registration.

10. With regard to the construction of the solenama that turns upon the interpretation of the term 'be meadi' I agree with my learned brother that 'be meadi' does not mean permanent. This view is supported by the decision of the Patna High Court in the case of Parshan Kuer v. Tulsi Kuer [1918] P.H.C.C. 11.

11. I need only add that I do not think that the argument based on the fact that the vakalatnama was executed by the administrator is well founded. That would only make the lease voidable and not void and would not, I think make the agreement or compromise an illegal one. I agree in the order proposed by my learned brother.


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