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Ashutosh Chattopadhyay and ors. Vs. Nalinakshya Bandopadhyay and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal467
AppellantAshutosh Chattopadhyay and ors.
RespondentNalinakshya Bandopadhyay and ors.
Cases ReferredBanarsi Das v. Ali Muhammacl
Excerpt:
- .....is an appeal by the defendants in a suit for khas possession by ejecting the defendants from the land in suit. the trial court decreed the suit. the decree was affirmed in appeal. upon hearing the learned advocates it appears that the land in suit is an area of four cottasin the town of rampurhat. on it the defendants have a residential house. defendant 1's uncle, bishnu ch. chatterjee, who was a mukhtear at rampurhat, long ago took lease of the land from the plaintiff's predecessor at a rent of rs. 3 a year and erected a house and lived there. after he had retired from his practice as a mukhtear, a suit was brought against him for rent. on denial of relationship by the tenant the plaintiff's predecessor instituted a suit for ejection. that suit was compromised in 1903 and by the.....
Judgment:

M.C. Ghose, J.

1. This is an appeal by the defendants in a suit for khas possession by ejecting the defendants from the land in suit. The trial Court decreed the suit. The decree was affirmed in appeal. Upon hearing the learned advocates it appears that the land in suit is an area of four cottasin the town of Rampurhat. On it the defendants have a residential house. Defendant 1's uncle, Bishnu Ch. Chatterjee, who was a mukhtear at Rampurhat, long ago took lease of the land from the plaintiff's predecessor at a rent of Rs. 3 a year and erected a house and lived there. After he had retired from his practice as a mukhtear, a suit was brought against him for rent. On denial of relationship by the tenant the plaintiff's predecessor instituted a suit for ejection. That suit was compromised in 1903 and by the compromise the tenant agreed to pay enhanced rent at Rs. 5 a year and the landlord granted him mukarari right to the land. Afterwards in the Record of Rights the tenant's right was described to be mukarari. The Courts below held that the compromise of 1903 was a document which required registration under Section 17(b), Registration Act, and not having been registered it is not admissible in evidence. The Courts held that the defendants could not take advantage of the unregistered compromise, and the plaintiff's case that the defendants were monthly tenants liable to be ejected on notice was correct.

2. It is urged in appeal that the suit was instituted in January 1932 and the principle is that parties are to be governed by the law as it stands at the date of the institution of the suit. At the date of the suit, Section 49, Registration Act, provided that no document required by Section 17 to be registered shall be received in evidence provided that an unregistered document may be received as evidence of part performance of a contract for the purposes of 8. 53-A, T.P. Act. The proviso to Section 49 came into effect from 1st April 1930 long before the institution of the suit. There can therefore be no doubt that the compromise in this case is admissible as evidence to prove part performance of the contract for the purposes of Section 53-A, T.P. Act. The question now is whether the defendants are entitled to rely upon Section 53-A. The Court of appeal below relying on Kanjee and Mooljee Brothers v. Shunmugam Pillai AIR 1932 Mad 734 held that Section 53.A applies only to transfers of immovable property made after 1st April 1930. The view of that case is that though the suit be instituted after April 1930 yet the section will not apply if the transfer in question took place before 1930. With all respect to the learned Judges of the Madras High Court I am unable to agree to that view of the law. It may be stated that in that case the observation was in the nature of an obiter inasmuch as the learned Judges taking another view of the facts admitted the document in question and gave effect to it. On a plain reading of Section 53-A it appears clear that the section will apply to all cases instituted on or after 1st April 1930. I am fortified in this view by the opinion of Bennet, J. of the Allahabad High Court in Gajadhar Missir v. Bechan Chamar : AIR1934All768 and the opinion of Bangi Lal, J. of the Lahore High Court in Banarsi Das v. Ali Muhammacl AIR 1936 Lah 5. In both these cases it was held that when a suit is instituted after 1st April 1930 Section 53-A will apply though the transfer took place before 1930. It may be noted that Section 53-A was Section 16 of Act 20 of 1929 by which the Transfer of Property Act was amended. In Section 63 of the Amending Act certain sections were mentioned and it was stated that those sections will not affect the terms or incidents of any transfer of property made or effected before 1st April 1930. Section 16 was not mentioned as one of the sections which will not affect the terms or any incidents of a transfer of property made before 1st April 1930. No less than 22 sections were named as sections which will not affect the terms of a transfer made before 1st April 1930, but Section 16 was not so mentioned. The natural inference to be drawn from this fact is that Section 16 will apply to suits brought after 1st April 1930 and will affect transfers made before 1st April 1930. In the present case since the compromise of 1903 the defendants have been occupying the land and the house on it and duly paying Rs. 5 a year as rent to the plaintiffs and their predecessor. By this part performance for over 28 years before the suit the defendants are clearly entitled to the benefit of Section 53-A and the plaintiffs are not entitled to eject the defendants. In the result the appeal is allowed. The decrees of the Courts below are reversed and the plaintiff's suit is dismissed with costs in all the Courts. Leave to appeal is refused.


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