1. This appeal has arisen out of a suit for recovery of rent for the years 1334 to 1338 at the rate of Rs. 16 per annum on the basis of a registered kabuliyat together with damages at the rate of 25 per cent on the rent due. The suit was contested on the ground that the plaintiffs had not put the defendants into possession of the land which was leased to them, and that the plaintiffs were not the sole landlords having only an eight annas share, a fact which was concealed from the defendants at the time when the kabuliyat was executed. The trial Court dismissed the suit on the ground that the defendants had not been put into possession of the land. On appeal, the learned District Judge decreed the suit. The kabuliyat on which the suit is based states that the holding in question which was described therein as 'owned and possessed by me, namely, the lessor, is mourashi right' and the lessee says:
I, having applied for taking a permanent patni settlement and you having agreed to grant the same, I, do hereby take from you this permanent Mokurari Patni Patta to the following effect.
2. The deed continues:
We have been owners possessing the aforesaid land with other lands since the time of our ancestors in Maliki right. Your having applied for taking a permanent Patni Settlement of the aforesaid land; we have agreed to grant your prayer, and we having received in cash to-day from you Rs. 225 as Nazarana in respect of the 4 Kedars of land described in the schedule below and after having accepted the kabuliyat executed by you grant this permanent patta fixing the annual kaimi rent at Rs. 16.
3. The document goes on to state:
You shall be entitled to own and possess the aforesaid patni right and shall be entitled to make gifts, sales, grant leases and make all sorts of transfers. You, your heirs, representatives and successors in interest shall be entitled to own and possess the patni by exercising all sorts of rights such as rights of digging ditches and pools, constructing pucca houses and pucca walls and by cutting the trees and by burning bricks, etc.
4. From this it is clear that the intention was that the lessee should get khas possession. Ordinarily, in such a case if the landlord fails to put the lessee into possession he will not be entitled to recover rent. The learned Judge, however, holds that this case stands on a different footing; in the first place, because the kabuliyat is silent on the fact that the lessor will have to put the lessee in possession of the lands demised to the latter; and secondly, because it is the specific case of the plaintiffs that defendant 1, who was eager to have the disputed lands in connection with his business, took settlement of the lands knowing full well that they were in the occupation of certain tenants of the plaintiffs and that he agreed to manage matters somehow with regard to getting Khan possession of the lands leased out to him. He points out that the defendants who had their brick-fields and other lands in the vicinity and who were actually conversant with the nature of the lands in suit would have surely insisted on the insertion of a clause relating to the delivery of possession of the lands to them by the plaintiff in the kabuliyat, had the plaintiffs actually agreed to put them in possession of the lands. He says that the absence of such a clause, together with the subsequent conduct of defendant 1 in taking steps to get possession of certain portions of the lands even after expenditure of money, lends support to the plaintiffs' story that defendant 1 who was very eager to have the lands in suit undertook to manage matters somehow regarding his Khan possession of the lands in suit. He referred to some evidence, with regard to this kabuliyat, of one Jogendra Nath Guha to the effect that this was agreed between the parties at the time of the execution of the kabuliyat. On the other hand, it is contended that under Section 91, Evidence Act, oral and other evidence is not admissible. Under Section 91 when the terms of a contract have been reduced to the form of a document, no evidence shall be given to prove the terms of the contract, grant or other disposition of pro perty except the document itself. On the other hand, under Section 92, Evidence Act, the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms may be proved. It is argued that, in this case, since the document is silent as to whether the lessor was to put the lessee into possession, oral evidence is admissible to show that there was no such agreement. However, although it is not expressly stated that the lessor will: put the lessee into possession, that this was understood is quite clear from the terms of the document. The document states that the lessee would be entitled to own and possess the putni by exercising all sorts of rights, such as rights of digging ditches and pools, constructing pucca houses and pucca walls and by cutting the trees and by burning bricks. It is thus clear that the intention was that the lessee will be entitled to have Khan possession and, in the circumstances, I think that Section 92, Evidence Act, can have no application.
5. For the appellant the case in Jogesh Chandra Roy v. Emdad Meah 1932 P C 28, has been referred to. There it was held by their Lordships of the Privy Council that where the tenant denies that he ever got possession of the land it is for the landlord to prove that he has discharged his obligation to put the tenant in possession before he can enforce the tenant's obligation to pay rent. In that case it was held that the respondent knew when he executed the kabuliyat that the whole 16 annas would not be available. The learned Subordinate Judge held that the tenant could not turn round and say that because the landlord could not put him in possession of the whole 16 annas he was not liable to pay rent or that the kabuliyat was not binding on him. Their Lordships agreed with the conclusion of the Subordinate Judge on the evidence that the respondent got possession of that share of the land that was available for possession and that it would be an injustice that the respondent should escape from payment of rent in respect of the possession which he has got under the kabuliyat. In the present kabuliyat however no mention is made to the fact that there were other tenants in possession under the superior landlord and there is no indication that the landlord made any attempt to give possession to the tenants or to give those who were in possession under him notice of the lease to the lessee. It is clear from the terms of the kabuliyat that the contract was that the lessee would get Khan possession of the lands and in the circumstances, the oral evidence to show that there was any other arrangement between the parities was not admissible under Section 91, Evidence Act. The trial Court points out that the intention of defendant No. 1 in seeking to recover the riverside lands from the plaintiff's father was to dump his limestone there and burn the same for despatch by boats and that it was not as a mere rent collector or tenure-holder that he sought this settlement so eagerly. The lease stated that the lessor was in possession of the lands and from its terms it is clear that this was a contract for khas possession. In the circumstances, it was not open to the defendant to prove that there was any oral agreement that he should get possession on his own account.
6. This appeal is, accordingly, allowed. The decree of the lower appellate Court is set aside and that of the trial Court restored with costs in all Courts. The prayer for leave to appeal is rejected.