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Pannalal Rudra and anr. Vs. Birendra Alias Bireswar Sana - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 855 of 1951
Judge
Reported inAIR1960Cal201,64CWN47
ActsRegistration Act, 1908 - Sections 2(7), 17(1), 17(2) and 49; ;Tenancy Laws; ;Bengal Tenancy Act, 1885 - Section 29
AppellantPannalal Rudra and anr.
RespondentBirendra Alias Bireswar Sana
Appellant AdvocateBalai Lal Pal, Adv.
Respondent AdvocateKalipada Sinha, Adv.
DispositionAppeal dismissed
Cases Referred and Sumatibai Waman v. Anant Balkrishna
Excerpt:
- .....rate of rs. 34/-per year on the basis of the admission made by the defendant respondent as to the rate of rent. the solenama in question was marked ext. 1 in the trial court. it is an admitted fact that the title suit in which the solenama was filed was instituted by the defendant respondent for declaration of his title to the rent lands and for khas possession thereof. besides the two appellants there were two other defendants in that suit with whom we are not concerned. the present appellants and the defendant respondent came to terms; in that title suit and filed a petition of compromise the material terms whereof were that birendra alias bireswar sana the respodnent of this appeal and plaintiff of the previous title suit would pay a selami of rs. 102/- to the present appellants.....
Judgment:

Renupada Mukherjee, J.

1. This appeal has arisen out of a suit instituted by the plaintiffs appellants for recovery of arrears of rent from the defendant respondent for the years 1352 to 1355 B. S. at the rate of Rs. 55/- per year with cesses and damages at the ordinary rates.

2. The suit was contested by the defendant whose only defence in so far as the present appeal is concerned was that the plaintiffs can recover rent at the rate of Rs. 34/- per year and not at the, rate of Rs. 557- per year as claimed by them.

3. This defence of the defendant found favour with the trial court and it decreed the claim of the plaintiffs at the rate of Rs. 34/- per year with cesses and damages at the ordinary rates and also with costs in proportion to plaintiffs success.

4. An appeal was preferred by the plaintiffs from the above judgment and decree of the trial court and the lower appellate court dismissed the appeal and affirmed the decree of the trial court although on grounds somewhat different from the grounds given in the judgment of the trial court. This appeal has been preferred by the plaintiffs from the above Judgment and decree of the lower appellate court.

5. The decision of this appeal depends on the construction and interpretation of a solenama filed by the present parties in Title Suit No. 138, of 1943 in the court of the Munsif of Ghatal. Another question which has cropped up in that connection is whether that solenama is compulsorily registrable and whether in the absence of such registration that document can be admitted or used in evidence. I may straightway mention that there is no evidence of realisation of rent at the rate of Rs. 557- per year by the plaintiffs appellants. The courts below have passed a decree in favour of the appellants at the rate of Rs. 34/-per year on the basis of the admission made by the defendant respondent as to the rate of rent. The solenama in question was marked Ext. 1 in the trial court. It is an admitted fact that the Title Suit in which the solenama was filed was instituted by the defendant respondent for declaration of his title to the rent lands and for khas possession thereof. Besides the two appellants there were two other defendants in that suit with whom we are not concerned. The present appellants and the defendant respondent came to terms; in that title suit and filed a petition of compromise the material terms whereof were that Birendra alias Bireswar Sana the respodnent of this appeal and plaintiff of the previous title suit would pay a selami of Rs. 102/- to the present appellants within Magh, 1332 B. S. mid possess the rent lands under them at a rent of Rs. 557- per year with effect from 1352 B. S. If he defaulted in paying the selami of Rs. 102/- within the period so fixed, the suit lands would enure to the khas possession of the present appellants and the title suit of the respondent would stand dismissed.

6. The trial court has held that the above solenama was a compulsorily registrable document inasmuch as it purported to create a lease and as it was not registered it could not be utilised by the plaintiffs landlords for the purpose of proving what was the amount of annual jama. The trial court further held that the previous jama was Rs. 34/- and as it was enhanced to Rs. 55/- the enhancement was his by section 29 of the Bengal Tenancy Act and the landlords were not entitled to realise rent at the enhanced amount provided in the solenama.

7. In appeal the lower appellate court held that the solenama only varied the previous rent which wag Rupees 34/- and, therefore, it was not compulsorily registrable. That court, however, affirmed the finding of the trial court that Section 29 of the Bengal Tenancy Act operated as a bar to the realisation of rent by the appellants at the rate of Rs. 55/- per year.

8. Mr. Pal appearing on behalf of the plaintiffs appellants submitted before me that the courts below committed an error in law in holding that Section 29 of the Bengal Tenancy Act is a bar inasmuch as the compromise was embodied in a decree and the rate of rent was fixed by the decree. In support of his contention he relied on a case reported in 50 Gal WN 166, Nibaran Chandra Nandi v. Ahamadar Rahman. In my opinion this case does not help the appellants because in that case a previous decree had already been passed at the enhanced rate although that enhancement was in violation of the provisions of Section 29 of the Bengal Tenancy Act. In the present case the question which really falls for my determination is whether the solenama filed in the previous suit is compulsorily registrable. In my opinion a consideration of the applicability of Section 29 of the Bengal Tenancy Act is wholly irrelevant in the present case. It may be that at one time the defendant respondent held the rent lands at a jama of Rs. 34/- but that jama, if it ever was existent, was wholly obliterated by the previous decree passed in the title suit on compromise. That decree provided that the lands would enure to the khas possession of the present appellants if the defendant respondent did not take settlement thereof on paying a selami of Rs. 102/- within a time fixed by the parties. After that decree it is not open to any party to say that the previous rent was Rs. 34/- per annum or that that rent was illegally enhanced by a contravention of the provisions of Section 29 of the Bengal Tenancy Act. That finding of the courts below is set aside.

9. I now come to the one all important question raised in this appeal, namely, whether the solenama mentioned above is inadmissible in evidence for want of registration. . Mr. Sinha appearing on behalf of the defendant respondent submitted that the document creates a lease or at least the document is an agreement for a lease and as such it is compulsorily registrable under Clause (d) of Sub-section (I) of Section 17 of the Indian Registration Act. Mr. Pal appearing on behalf of the appellants contended, on the other hand, that this solenama is a document which falls under Clause (b) of Sub-section (1) of Section 17 of the above Act. The above two clauses of Subsection (1) of Section 17 of the Registration Act run in the following terms:

'17. Documents of which registration is compulsory (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No, XVI of 1864, or the Indian Registration Act, 1866 (XX of 1866) or the Indian Registration Act 1871 (VIII of 1871), or the Indian Registration Act, 1877 (III of 1877) or this Act came or comes into force, namely

X XX XX

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

X XX XX

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;'

In this connection I need also refer to Clause (vi) of Sub-section (2) of Section 17 of the same Act which exempts the registration of decrees in certain cases. The material portion of Clause (vi) of Sub-section (2) of Section 17 of the Registration Act runs in the following terms:

'(2) Nothing in Clauses (b) and (c) of Sub-section(1) applies to--x x ' x x x

(vi) any decree or order of a Court (except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or-proceeding); or

*******

10. If the present solenama is regarded as a document which falls within Clause (b) of Sub-section (1) of Section 17 then it would not require compulsory registration. If, on the other hand, it is regard-ed as a lease which also includes an agreement for a lease by virtue of Clause (7) of Section 2 of the Registration Act then it would not be exempted from compulsory registration. Mr. Sinha appearing on behalf of the defendant respondent contended that according to the terms of the solenama the lands for which rent has been claimed in the present suit would enure to the khas possession of the appellants unless the defendant respondent took settlement thereof at' a rent of Rs. 55/- per year on paying a selami of Rs. 102/- within the period fixed in tho compromise. Having regard to these terms of tho solenama Mr. Sinha submitted that the document was in effect and substance, if not in terms, an agreement for a lease. In support of his contention Mr. Sinha relied on two cases one of which is reported in : AIR1927Cal913 , Rajani Kanta Banerjee v. Raj Kumari Dasi. In that case a suit for recovery of khas possession was brought in respect of some, lands. That suit was settled by a solenama and the effect of the solenama was that the defendant's father admitted the right of the plaintiff to get possession of these lands but it was agreed that the defendant's father should he a tenant to the plaintiff at a certain rent permanently, ft was held upon a construction of the solenama that it was a lease and it required compulsory registration and it would not fall within Clauses (b) and (c) of Sub-section (1) of section 17 of the Registration Act. The other case cited by Mr. Sinha on behalf of the defendant respondent is reported in Nagendra Chandra v. Puma Chandra Gupta : AIR1935Cal261 . In that case also it was held that a solenama filed under similar circumstances was a lease and as such it was compulsorily registrable. The solenama with which I am concerned in the present case is quite similar to the solenamas which came up for the consideration of the learned .Judges in the above mentioned two cases. That being so, I am of opinion that the solenama created a lease or to be more precise, the solenama embodied an agreement to lease, and as such it specifically fell within Clause (d) of Sub-section (1) of Section 17 of the Indian Registration Act and was not, therefore, protected, from compulsory registration by Clause (vi) of sub-section (2) of Section 17 of the above Act.

11. Mr. Pal appearing on behalf of the appellants submitted that there is one distinguishing feature in the present case and that feature is that before the solenama in question was filed the land was in the possession of the defendant. He argued that under the terms of the solenama no lease was created, but only a declaration of a certain right was made in favour of the defendant respondent although that right was, by the consent of the parties, inferior to the right claimed by the defendant respondent. It was, therefore, submitted by Mr. Pal that the creation of this right by the solenama brings it within the scope or Clause (b) of Section 17(1) of the Registration Act. In my opinion this contention of Mr. Pal cannot be accepted. The terms of the solenama are quite clear. Whatever right the defendant respondent might have claimed in the disputed lands was Given up by the solenama and he took or agreed to take a lease of the disputed lands on payment of a selami and after fixation of a rent. Such a solenama specifically falls within Clause (d) of Sub-section (1) of Section 17 of the Registration Act and so according to the rules of construction of statutes it should be held that the solenama and the compromise decree passed on the basis of that solenama would be governed by Clause (d) and not by Clause (b) of Section 17(1) of the Registration Act although the compromise decree in a wider sense may fall within the category of documents mentioned in Clause (b): vide Kasim Maralckayar v. Muhammad Abdul Rahiman : AIR1944Mad273 and Sumatibai Waman v. Anant Balkrishna, AIR 1949 Bom 402.

12. From the foregoing observations it would be clear that the solenama in question is really a document by which the plaintiffs appellants agreed to give lease of the disputed property to the defendant respondent. That being so, the compromise decree was compulsorily registrable if the plaintiffs appellants intended to make use of this document for the purpose of claiming rent From the defendant respondent at the rate stipulated in it. As tbe document was not registered it is not admissible in evidence for the purpose for which the appellants wanted to utilise it in the present suit. If that document is excluded from my consideration then there is no other evidence on the record to show what is the rate of rent of the disputed holding, The courts below were justified in passing a decree at the rate admitted by the defendant respondent.

13. I, therefore, dismiss this appeal although my judgment is based on grounds which are different from the grounds given in the judgment of the lower appellate court.

14. In view of the circumstances of the caseI direct that the parties will bear their own costsin this appeal.


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