Skip to content


Smt. Kamini Dasi W/O Gobinda Chandra Das Vs. Hari Pada Dutt - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1939Cal416
AppellantSmt. Kamini Dasi W/O Gobinda Chandra Das
RespondentHari Pada Dutt
Cases ReferredLalit Mohan Ghose v. Gopalichuk Coal Co. Ltd.
Excerpt:
- .....of a kabuliat. the defence was that at the time of the execution of the kabuliat there was a pre-existing tenancy and therefore defendant 1 had no right to execute the kabuliat at the rate of rent claimed by the plaintiff. the suit was decreed at the kabuliat rate in both the courts. the two points raised in this appeal are, firstly, that the sole-nama ex. 1(a) was wrongly held to be inadmissible in evidence owing to not being registered, and secondly, that the rate of rent was res judicata having been decided as between the parties in a previous suit and that the admissibility of the solenama is also res judicata inasmuch as it was admitted in a previous suit between the parties. as regards the admissibility of the solenama it seems clear that inasmuch as it was an agreement.....
Judgment:

Jack, J.

1. This appeal has arisen out of a suit for recovery of produce rent of the plaintiff's half share of the rent of certain land described in the plaint on the basis of a kabuliat. The defence was that at the time of the execution of the kabuliat there was a pre-existing tenancy and therefore defendant 1 had no right to execute the kabuliat at the rate of rent claimed by the plaintiff. The suit was decreed at the kabuliat rate in both the Courts. The two points raised in this appeal are, firstly, that the sole-nama Ex. 1(A) was wrongly held to be inadmissible in evidence owing to not being registered, and secondly, that the rate of rent was res judicata having been decided as between the parties in a previous suit and that the admissibility of the solenama is also res judicata inasmuch as it was admitted in a previous suit between the parties. As regards the admissibility of the solenama it seems clear that inasmuch as it was an agreement purporting to vary the rent reserved in a previous registered lease it would also require registration. If any authority is required for this, it is to be found in Kailsh Chandra pathak v. Madan Mohan Singh . On behalf of the appellant, this case has been differentiated on the ground that there the learned Judge relied upon the case in Lalit Mohan Ghose v. Gopalichuk Coal Co. Ltd. (1912) 39 Cal. 2844 in which the previous lease was compulsorily registrable, and therefore it is sought to distinguish the case on the ground that in the present case the previous lease which was a raiyati lease was not compulsorily registrable. It appears however that the general proposition that was laid down in the case in Kailsh Chandra pathak v. Madan Mohan Singh was that where a document purports to vary the rent, it requires registration, and it seems to me to be also in accordance with the general principles that if one wishes to vary the rent on which the land is held under a registered lease it should be by a registered instrument. The fact that the previous lease was compulsorily registrable does not appear to me to alter the principle.

2. At the very last stage another point was raised, namely that in fact the Lohars were not holding under a registered lease since their lease was under the Ratis whereas the plaintiff purchased in execution of a mortgage decree against one of their, vendors and the tenancy which the Lohars held was not under a registered lease. But the whole point at issue between the parties was whether the Lohars held under a pre-existing tenancy or whether the lease terminated, and the decision in the previous suit was that the pre-existing tenancy was still existing and that pre-existing tenancy was a tenancy under a registered lease. There is therefore in my opinion no substance in the points raised in this appeal. The result is that this appeal is dismissed with costs. Leave to appeal under Clause 15 of the Letters Patent is refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //