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Sm. Nanda Rani Debi Vs. Apcar Collieries Ltd. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 283 of 1956
Judge
Reported inAIR1963Cal636
ActsLand Acquisition Act, 1894 - Section 30; ;Registration Act, 1908 - Section 17(1)
AppellantSm. Nanda Rani Debi
RespondentApcar Collieries Ltd.
Appellant AdvocateLala Hemanta Kumar and ;Rameswar Saha, Advs.
Respondent AdvocatePrafulla Kumar Roy (Sr.) and ;Surathi Mohan Sanyal, Advs.
DispositionAppeal allowed
Excerpt:
- .....settled law that, so far as agricultural leases or agricultural lands are concerned, a permanent lease or leases of any description whatsoever can be made orally. in this particular case there is, undoubtedly, one document, namely, the kabuliyat (ext, 1), which, to the extent it goes as evidence of such lease, would require registration. the kabuliyat (ext. 1) however, has actually been registered; no objection on account of non- registration can, therefore, be taken to the kabuliyat (ext. 1) but, as we have said earlier, the kabuliyat, by itself, cannot constitute the lease; for that purpose, it must be accepted.9. the question now is whether this acceptance was in writing or in the circumstances of this case, it can be taken to have been oral acceptance. if it was in writing, the.....
Judgment:

P.N. Mookerjee, J.

1. This appeal arises out of a proceeding for apportionment of compensation in a land acquisition case. The acquisition in question was made for the construction of staff quarters of the Coat Mines Stowing Board, Asansol. The appellant before us claimed to be a permanent mokarari tenant under the respondent company in respect of the acquired land, measuring 7.04 acres in Mouza santa, P. S. Asansoi, District Burdwan. Her claim was accepted by the Collector, who, by his award, dated April 1, 1949, gave her the whole of the compensation money less only a sum of Rs. 2/10/6p. which was given to the respondent company, the amount awarded to the appellant being Rs. 35,215/12/0 out of the total compensation of Rs. 35,218/6/6p., awarded by the Collector, so far as these parties are concerned. The award, so far as the valuation goes, was not objected to by either party, but the respondent company, feeling aggrieved by the above apportionment, applied, on May 5, 1949, for an apposite reference. In the said reference petition, the company contended that the appellant was not a permanent mokarari tenant, as claimed by her, in respect of the disputed property and that, even if she had that status or character, under the terms of the relevant kabuliyat (Ext. 1), on which her said claim rested, she was not entitled to any part of the compensation money. The reference was duly made on May 25, 1950, and it was registered as Land Acquisition Case No. 282 of 1950 before the learned District Judge, Burdwan. Eventually, this reference was accepted and allowed by the learned District Judge and the collector's award was modified and, by his judgment and award dated June 14, 1956, the learned District (Land Acquisition) Judge gave the whole of the compensation money (Rs. 35,218/6/6) to the respondent company. Thereupon, this appeal was preferred by the appellant to this Court on July 6, 1956. At an earlier stage, the appeal came up before a Bench of this Court, presided over by myself, and it was remanded for allowing the respondent company to press specifically its objection to the appellant's status and for allowing the parties opportunity to adduce further evidence on the two points involved, namely, (1) the question of the appellant's status, that is, as to whether she had permanent mokarari right in the disputed property and (2) whether even If she hart such permanent mokarari tenancy she had, by the relevant kabuliyat (Ext. 1) abandoned her claim to all compensation money on acquisition. This evidence was taken by the learned Land Acquisition Judge and the records were ultimately returned to this Court for further hearing of the appeal, which was kept by this Court on its file, while making the above order of remand presumably under Order 41 Rule 25 of the Code of Civil Procedure.

2. The above further evidence along with the earner evidence on record will now be the evidence in the case and, in the light of the same, the two questions, which have arisen between the parties, as aforesaid, will have to be determined.

3. As to the term in the kabuliyat (Ext. 1), upon which the learned District (Land Acquisition) Judge relied,--and solely relied--in making the entire award in favour of the respondent company in the instant case, in his award, which is now under challenge in this appeal, we have little hesitation in holding that the reliance, placed upon it by the said learned Judge, cannot be supported. The term in question, in the context, in which it appears, and on its own wordings, cannot be construed against the appellant as constituting an abandonment of her claim to any part of the compensation money on acquisition of the disputed property. The words of the agreement are some what significant and it is necessary to quote them in their original, that is, in Bengali, in this connection. These words are:

^^cankscLrh tkxk; dksu va'k xouZesaV dfZrZ`dx`fgr g; rkgk gkbZy dkisU'kslus Vkdk vkbZu er vkiukjk ikbZcsu**

which may be translated as follows:

'If any portion of the land settled be acquired by the Government, you will be entitled to get compensation money according to law.'

The significant word in this connection is ^^vkbZu er** which means 'according to law'. If emphasis is laid on this word, the position is that the appellant agreed that, on such acquisition, as aforesaid, compensation will be payable to the landlord company in accordance with law. This must mean, in the context, in which it appears, that the compensation will be payable to the parties in accordance with law.

4. Stress, no doubt, was laid on the claim of, or, to be made, in this connection, by, the respondent company, but that, naturally and necessarily, attracted also the question of claim of the appellant; in other words, as we read this clause, it was no surrender or abandonment of the appellant's right to any part of the compensation money but was merely an agreement that the parties would be entitled to compensation in accordance with law. If that is so, the reasoning, given by the learned District Judge for his award of the entire compensation money in favour of the respondent company is unsound and it cannot be supported, or accepted.

5. This takes us to the respondent's other objection to the appellant's claim to any part of the compensation money. This is more fundamental and, in this Court, a special prayer was made, on the earlier occasion, to resist the appellant's claim on this footing, as this aspect and been over-looked by the [earned District (Land Acquisition) Judge in making his impugned award. That opportunity, as we have already said, was given by this Court on terms and It Is now for consideration whether this objection of the respondent company has really any substance in the facts and circumstances of this instant case.

6. There is no question that there is a kabuliyat (Ext. 1) between the parties. The terms of that kabuliyat clearly paint to a permanent mokarari tenancy, provided such tenancy is acceptable either on the strength of the said Kabuliyat alone or along with other facts or other documents, it appears that, in respect of this kabuliyat, which is of the year 1334 B.S., there was some dispute between the parties, culminating in a title suit on the part of the respondent company, challenging the kabuliyat as an invalid and inoperative document This suit appears to have been eventually compromised and the compromise decree is on record as Ext A. This compromise decree shows that the dispute about the kabuliyat was ultimately resolved and the appellant's claim of permanent mokarari tenancy in respect of the disputed land was recognised. This compromise decree, however, was not registered and it is on this fact of non-registration, that the present objection of the respondent company to the existence of a valid permanent mokarari tenancy in favour of the appellant rests. It is contended on its behalf that, although the kabuliyat (Ext. 1) was registered, it was, by itself, insufficient to create a permanent mokarari lease or any lease whatsoever as, without acceptance, the kabuliyat cannot be the foundation of a lease in law.

7. To this proposition, there can be no answer but we question still remains whether there has been valid and proper acceptance in law in the instant case so as to perfect the rights under the kabuliyat. If the acceptance is to be found only from or rests solely upon the compromise decree, Ext. A, the objection on the ground of non-registration will still remain, as the compromise (Ext A) would then be the document of acceptance and the two together, namely, the kabuliyat (Ext 1) and the compromise decree (Ext. A) would constitute the lease. In such circumstances, both the documents must be registered, if they are to constitute the documents of a permanent mokarari lease. This is apart from and irrespective of the provisions of Section 107 of the Transfer of Property Act, which do not apply to the instant case, as the lands here are agricultural lands, upon tne very terms of the kabuiiyat (Ext. 1), which have, as a matter of fact, been accepted by the respondent company and which clearly point to the character of the lands and the purpose of the lease as being agricultural, this then, will be excepted from the purview of the Transfer of Property Act by reason of Section 117 of the said Act and the provisions of Section 107 would not apply. Even then, now-ever, under the Indian Registration Act (vide Section 17(1)(d)), if the acceptance is to be found only from or in the compromise decree (Ext. A), the same as one of the documents, constituting the lease, must be registered as, under the aforesaid Section 17(1)(d), a lease of this type requires compulsory registration even if it relates to agricultural land or even if it be an agricultural lease.

8. It is to be noted, however, that the Indian Registration Act strikes at documents and not at transactions. It, then, the acceptance rests otherwise than on the compromise decree (Ext. A) or, in other words, if it is not in writing, the question of registration would not arise. It is settled law that, so far as agricultural leases or agricultural lands are concerned, a permanent lease or leases of any description whatsoever can be made orally. In this particular case there is, undoubtedly, one document, namely, the kabuliyat (Ext, 1), which, to the extent it goes as evidence of such lease, would require registration. The kabuliyat (Ext. 1) however, has actually been registered; no objection on account of non- registration can, therefore, be taken to the kabuliyat (Ext. 1) but, as we have said earlier, the kabuliyat, by itself, cannot constitute the lease; for that purpose, it must be accepted.

9. The question now is whether this acceptance was in writing or in the circumstances of this case, it can be taken to have been oral acceptance. If it was in writing, the writing would, undoubtedly, require registration as part of the document or documents of lease. If, however, it was oral, such oral acceptance is well recognised and permissible in law and would not require registration under the Indian Registration Act, as that Act, as we have said above, strikes at documents and not at transaction and has no application, when there is no document of the particular transaction.

10. Turning now to the recitals in the compromise decree (Ext. A), or, to be more precise, in compromise petition, on which the said decree is based, it is interesting to note that, in the very first paragraph, that document speaks of a lease having been taken ^^cankscLr yksb;k to quote the actual original Bengali words, -- by the appellant from the respondent, for which the disputed kabuliyat (Ext. 1) was executed. It supports an inference that this kabuliyat (Ext. 1) was accepted and a valid lease had come into existence even without or before the compromise decree (Ext. A). It is significant to note again that, in the very same paragraph, what was stated was that, on the allegation that the kabuliyat had not been accepted, a suit was brought by the Company. Stress here must be laid on the statement that 'on the allegation that the kabuliyat had not been accepted, the suit was brought'. This points to the fact that the alleged dispute was as to the question of this acceptance and, for the settlement of this alleged dispute, the appellant paid a sum of Rs. 1,000/- and the said dispute was waived or abandoned. This does not support the view that the kabuliyat (Ext. 1) was accepted only by the compromise decree (Ext. A). The acceptance, if any, was there, but the alleged dispute, only, which was raised, was waived or settled on payment of the above amount. In any event, the payment of the amount synchronized with the acceptance. There is nothing to indicate that, by or under the compromise decree, this payment was made. On the other hand, the recitais thereof are consistent with the view that the said compromise petition was merely the record of a completed acceptance, in this view, we would hold that, of the aforesaid acceptance, this compromise was not intended by the parties to be the sole repository or the sole document of evidence, but that this acceptance was apart from the compromise decree (Ext. A), which, or, rather, the compromise petition on which it was based and eventually passed, merely recorded the fact of that acceptance. In this view, the compromise decree (Ext. A) would not require registration for the purpose of proving that acceptance as it would merely be the record as memorandum and just a piece of evidence of such acceptance and in the circumstances, the appellant must be held to have had a permanent mokarari tenancy in the disputed land.

11. Realising this position, Mr. Roy, who argued the case on behalf of the respondent in this Court, relied on & second submission, which was to the effect that this compromise petition also contained a term of variation of the lease, created by the kabuliyat (Ext. 1) and its acceptance, even if there was a prior acceptance of the same as aforesaid, and, as such, the effective or the final lease between the parties would be evidenced and evidenced only by this compromise petition, or, more precisely, the compromise decree, of which it forms a part. In this view also, according to Mr. Roy, this compromise decree (Ext. A) would require registration, as the properties, which were dealt with, were outside the subject-matter of the relevant suit this argument was based on Section 17(1)(b) of the Act and, quite plainly, it will not be covered or affected by the exception in the matter of consent decrees, as embodred in Section 17(2)(vi) of the Act.

12. In our view, the above argument of the respondent also cannot be accepted in the facts of this case. At the most, the term, which is relied on by Mr. Roy on this part of the case, was merely a recognition that the kabuliyat (Ext. 1) was operative in respect of particular items of property. It did not, in our opinion, constitute a variation of any existing lease but it was merely an interpretation of construction of the said kabuliyat in the light of the views of the parties. If that is so, the compromise decree (Ext. A) was in no sense a decree creating, extinguishing or declaring any right of immovable property, which was not already in existence and which came into existence for the first time under this document and, in that view, we would hold that the compromise decree (Ext. A) would not require registration even under Section 17 Clause (1) Sub-clause (D) of the Indian Registration Act.

13. For the foregoing reasons, we would hold that the appellant has succeeded in proving that she had a permanent mokarari tenancy in respect of the disputed land and, further, that she had not validly abandoned or surrendered any right to compensation in respect of the same in case of its acquisition. It follows then that she will be entitled to the part of the compensation money, which lawfully goes to her as a permanent mokarari tenant or, in other words, to the entire compensation money less twenty times we annual rental, reserved under the operative lease. On this footing, the award between the parties is to he made in the instant case. The award under appeal is modified accordingly. To give the exact figures, of the total compensation money of Rs. 35,218/6/6p., the appellant will be entitled to Rs. 34,718/6/6p. and the balance Rs. 500/- will go to the respondent company.

14. The appeal is allowed as above and the disputed award under appeal is modified accordingly.

15. In the circumstances of this case, we direct the parties to bear their own costs throughout.

Bhattacharya, J.

16. I agree.


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