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Manindranath Dinda Vs. Amiya Pal Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. Nos. 204 and 205 of 1946
Judge
Reported inAIR1951Cal361
ActsTransfer of Property Act, 1882 - Sections 107, 107(3) and 117; ;Transfer of Property (Amendment) Act, 1929; ;Government of India Act, 1935 - Section 175(3); ;Bengal Statutory Orders, 1940; ;Bengal Statutory Rules, 1940; ;Crown Grants Act, 1895 - Section 3; ;Registration Act, 1908 - Section 90(1); ;Bengal Land Revenue Sales Act, 1859 - Section 37(1); ;Bengal Land Revenue Sales Act, 1950; ;Bengal Land Revenue Sales (Amendment) Act, 1950
AppellantManindranath Dinda
RespondentAmiya Pal Choudhury and ors.
Appellant AdvocateHiralal Chakravarty, ;Syamadas Bhattacharjya and ;Benode Behari Haldar, Advs.
Respondent AdvocateAmarendra Nath Boss and ;Hemanta Kumar Basu, Advs., ;A.C. Gupta, ;Rabindra Nath Choudhury and ;Harideb Chatterjee, Advs. (Defendants 1-17) and ;Amarendra Nath Boss and ;Hemanta Kumar Basu, Advs. for R
Cases ReferredIn Shrish Chandra v. Harendra Lal
Excerpt:
- g.n. das, j.1. these are two appeals by the defendant manindra nath dinda against the judgments and decrees passed by sri g. palit, additional subordinate judge third court, 24-parganas and dated 31-5-1946.2. the suit out of which f. a. no. 204 of 1946 has arisen, was numbered as title suit 23 of 1943 and later renumbered as title suit 6 of 1946. the suit out of which f. a. no. 203 of 1946 has arisen was numbered as title suit 40 of 1943 and later renumbered as title suit 7 of 1946.3. the two suits were heard together, and the court below delivered one judgment disposing of the two suits.4. in this court, f. a. no. 204 of 1946 was heard first and immediately thereafter f. a. no. 205 of 1946 was heard.5. i shall first state the case of the plaintiff amiya pal chowdhury in title suit no. 6.....
Judgment:

G.N. Das, J.

1. These are two appeals by the defendant Manindra Nath Dinda against the judgments and decrees passed by Sri G. Palit, Additional Subordinate Judge third Court, 24-Parganas and dated 31-5-1946.

2. The suit out of which F. A. No. 204 of 1946 has arisen, was numbered as Title Suit 23 of 1943 and later renumbered as Title Suit 6 of 1946. The suit out of which F. A. No. 203 of 1946 has arisen was numbered as Title Suit 40 of 1943 and later renumbered as Title Suit 7 of 1946.

3. The two suits were heard together, and the Court below delivered one judgment disposing of the two suits.

4. In this Court, F. A. No. 204 of 1946 was heard first and immediately thereafter F. A. No. 205 of 1946 was heard.

5. I shall first state the case of the plaintiff Amiya Pal Chowdhury in Title Suit No. 6 of 1946. The allegation briefly is that on 20-5-1908, Sm. Radha Sundari Pal Choudhury, who died in 1924 and whose estate is now in the hands of her son, Amiya Pal Chowdhury, the plaintiff, as the administrator to her estate, took a temporary settlement for a term of 33 years, of the disputed towzi No. 2935, being Part V of Lot No. 135 of Mouza Radhanagar Dakhin, J. L. No. 64 within police station Sandeshkhali in pergana Sunderbans in the District of 24-Par-ganas. The revenue for the estate was payable in four instalments, December, January, February and March of every year, and commenced to run from April, 1921 on a progressive scale, the maximum being Rs. 1157 ; she also took temporary settlement of two neighbouring touzis Nos. 2934, 2936 on similar terms. Before the expiry of the term there was a proposal to the plaintiff for taking a renewed lease for a further term of 30 years. The renewed lease was executed by the plaintiff alone and not by the Government.

6. The plaintiff did not notice that unlike the previous leases or the renewed leases of the other two touzis, the lease of the disputed touzi provided for an August kist. The plaintiff paid the June kist but for the above reason, did not pay the August Joist. For the default in payment of the August Joist the touzi was put up to sale and was purchased by the defendant Manindranath Dinda on 9-1-1942. The sale of the touzi was discovered by the plaintiff's naib when he went to pay the revenue on 10-1-1942. The plaintiff was then informed. The plaintiff preferred an appeal to the Commissioner of the Presidency Division which was dismissed on 26-3-1942 and the sale was confirmed on 10-4-1942. The plaintiff accordingly brought the present suit on 22-2-1943 for a declaration that the said revenue sale was a nullity or in the alternative for setting aside the sale. The plaintiff also prayed for a temporary injunction restraining the defendant from realising rent from the plaintiff's tenants or otherwise interfering with his rights pending the hearing of the suit and for confirmation of possession or in the alternative for recovery of possession if the Court found that the plaintiff was not in possession.

7. The grounds on which the plaintiff sought for setting aside the sale or for a declaration that the revenue sale is void were set out in the plaint and will appear from the judgment.

8. The defendant disputed the fact of plaintiff's alleged absence of knowledge about the August kist of the story about the date of or source of his knowledge of the sale and asserted that the plaintiff was negligent and that the revenue sale was valid. It was also asserted that the plaintiff was estopped from disputing the sale by reason of the covenant in the plaintiff's lease.

9. In Title Suit No. 7 of 1946, the plaintiff, Manindranath Dinda after setting out his revenue purchase, alleged that the defendants 1 to 17 who claim tenancy rights in different portions of the disputed touzi are in collusion with defendant 18 Amiya Pal Chowdhury and that the alleged leases were not bona fide transactions and did not create tenancy rights in the defendants 1 to 17 and were unavailing against the plaintiff who is a purchaser at a revenue sale.

10. The defendant 18 Amiya Pal Chowdhury denied the allegation of collusion and averred that there were mere talks of settlement which never matured as the Probate Court did not grant him permission under Section 307, Succession Act, and that he brought suits for ejecting the alleged tenants which he withdrew after the revenue sale. Defendants 1 to 5, 7 to 12, 14 to 17 filed a joint written statement. They challenged the validity of the revenue sale on grounds similar to those alleged by Amiya Pal Chowdhury in Title Suit No. 6 of 1946. They set up tenancy rights in different portions of the disputed touzi, they further alleged that these rights are protected rights, and that they had spent large sums of money for reclaiming the lands, and that their eviction would entail great hardship.

11. At the analogous hearing of the suits in the Court below, the issues framed originally in the two suits were amalgamated and the following issues were framed for decision at the time of trial.

1. Has the respective plaintiff any cause of action ?

2. Are the suits undervalued and is the court-fee paid sufficient ?

3. Is the Suit No. 6 barred by the principles of estoppel, waiver and acquiescence ?

4. Is the Indenture dated 31-3-41 a legal, binding and completed contract of lease or settlement ?

5. Was the revenue sale in question without jurisdiction and a nullity Was the said sale vitiated by irregularities Has the plaintiff in T. S. 6 sustained any substantial injury in consequence thereof Is the sale liable to be set aside ?

6. Is the interest of the defendants in T. S. 7 a protected one Is it liable to be annulled. Had they any tenancy under Mr. A. Pal Chowdhury ?

7. Is the suit bad for non-joinder of parties ?

8. Is the plaintiff entitled to khas possession or restoration of possession ?

9. To what other reliefs, if any, are the respective plaintiffs entitled ?

12. Issues (1), (2), (3), (7) were found in favour of the plaintiff by the Court below. The learned Advocates have not challenged the findings on these issues.

13. Accordingly we are concerned with the decision of the Court below on issues (4), (5), (6), (8), (9).

14. As a result of its decision on these issues the Court below decreed Title Suit No. 6 of 1946 with costs and ordered that the plaintiff Amiya Pal Chowdhury was entitled to the declaration that the sale of touzi No. 2935 was illegal and null and void and must be set aside and that the plaintiff was entitled to evict the defendant Manindranath Dinda.

15. Title Suit No. 7 of 1946 was dismissed on contest with costs to the contesting defendant,

16. Manindranath Dinda, the defendant in Title Suit No. 6 of 1946 and the plaintiff in Title Suit No. 7 of 1946 has appealed to this Court.

17. The Court below found that the zemindary of Amiya Pal Chowdhury was grossly mismanaged and that the default was the result of such mismanagement and not for want of funds.

18. No arguments were addressed to us on this finding.

19. The Court below also found that the renewed lease granted to Amiya Pal Chowdhury on 31-3-1941 was void in law on the grounds that the lease was not executed by the lessor, i.e., the Government, that the lease was not accepted by the lessor, that the lease was not registered as required by law and that as such the revenue sale held on the basis of the void lease is a nullity.

20. Mr. Chakravarty, learned Advocate for the appellant Manindranath Dinda attacked all these findings.

21. The Court below found that the lease was duly confirmed by the appropriate revenue authority and that the August kist was inserted with the knowledge of Amiya Pal Chowdhury and was valid.

22. Both these findings were challenged by Mr. Bose, learned Advocate for Amiya Pal Chowdhury.

23. The Court below found that the fact that the lease though executed one day before the expiry of the prior lease, was nevertheless valid. The Court below also held that the revenue sale was not held contrary to the provisions of Act XI [11] of 1859 and that the defaulter Amiya Pal Chowdhury did not sustain any injury, much less substantial injury.

24. Both these findings were not challenged by Mr. Bose.

25. Mr. Gupta learned Advocate for respondents 1-17 in F. A. 205 of 1946 adopted the arguments of Mr. Bose so far as it concerned the validity or otherwise of the revenue sale.

26. The paper book in F. A. No. 204 of 1946 has been marked as Book A, that in F. A. No. 205 of 1946 as Book B.

27. I shall first take up P. A. No. 204 of 1946. Before dealing with the contentions of the parties, it is necessary to state the facts of this case.

28. On 28-12-1900, a temporary settlement was granted by the Government to Sm. Radhasundari Pal Choudhury for a term of 40 years in respect of 5142 bighas of land which was virgin forest, at a progressive revenue. The lease Ex. 1 (b), was expressed to be granted by the Secretary of State for India in Council and was executed by the Sunderbans Commissioner and was duly registered. It contained a condition for reclamation of a portion of the jungle at the end of five years and a covenant for forfeiture in case of failure to do so.

29. As the lessee did not reclaim any portion, the lease was cancelled on 15-2-1908, vide Ex. C. The Lot was resumed and resettled with the same lessee on 30-5-1908. A new lease in respect of the said area was granted on the same date by the Government to Sm. Radhasundari Pal Chowdhury for a term of 33 years from 1-4-1908. The lease Ex. 1 (a) was expressed to be made on behalf of the Secretary of State for India in Council and was executed by the Deputy Collector in charge of the Sunderbans and was registered.

30. Both the above leases were in the form of leases prescribed under Rule 30 of the rules for the lease of waste lands in the Sunderbans. The kists for payment of revenue in both these leases were December, January, February and March.

31. On 31-3-1941 the Government granted the disputed lease to Amiya Pal Chowdhury for a further period of 30 years from 1-4-1941.

32. The lease, (Ex. 1) was described as an Indenture made between the Governor of the Province of Bengal and Amiya Pal Chowdhury, Administrator to the Trust Estate of Radha Sundari Pal Chowdhury. It was signed by Amiya Pal Chowdhury, Administrator to the Trust Estate of Radha Sundari Pal Chowdhury on 31-3-41. Below the signature the following endorsement appears :

'Signed and executed in my presence.

A. Khan A. S. O. 31-3-41.'

33. The lease was not executed by any person acting on behalf the Governor and was not registered.

34. The lease mentioned 4 kists 28th May, 28th August, 12th December, 28th February.

35. Clause (1) provided for permanent ex-emption from revenue in respect of one-fourth area.

36. Clause (2) fixed the revenue payable at Rs. 2873 in the four kists mentioned above.

37. Clause (3) provided that all arrears of revenue shall be recoverable as such under the laws in force.

38. Clause (5) provided for renewal, with a condition that one-half of the area was reclaimed within the period therein mentioned and failing this, the lease shall be liable to resumption without payment of any compensation to the lessee.

39. Clause (8) provided that boundary disputes with neighbouring estates shall be decided by the Collector subject to appeal to Board of Revenue.

40. Clauses (9), (10) provided for maintenance of boundary pillars on the lands demised.

41. Clause (11) provided for proportionate reduction of revenue and payment of compensation for cultivated lands in case of compulsory acquisition.

42. Clause (12) (a) provided that the land should be used for reclamation and cultivation.

43. Clause (12) (b) provided for maintenance of embankments.

44. Clause (14) conferred the right of transferability as regards the plots thereby demised.

45. Clause (15) conferred a heritable right.

46. The Court below was of the opinion that the document Ex. 1 required to be executed by both parties on the grounds (1) that it was a combined potta and a kabuliyat and was intended to be executed by both lessor and lessee and (2) that the execution by the lessor and the lessee was also required by Section 107, T. P. Act.

47. As regards the first ground the document is no doubt stated to be an indenture and contains mutual covenants by the lessor and the lessee. These facts are not conclusive to shew that the document, to be valid, must be executed by the lessor and the lessee. In the case of Raimoni Dasi v. Mathuramohan Roy, 39 Cal. 1016 : (14 I. C. 540) a Division Bench of this Court held that an instrument of lease executed only by the lessee and accepted by the lessor is sufficient to constitute a lease within Section 107, T. P. Act, before its amendment by Act XX [20] of 1929.

48. The view taken in Raimoni Dasi's case, 39 Cal. 1016 : (14 I. C. 540) was held by this Court in Dinanath Kundu v. Janakinath Roy : AIR1928Cal392 to have concluded this matter so far as this Court was concerned. The decision in Dinanath Kundu's case : AIR1928Cal392 was affirmed on appeal by the Privy Council Janaki Nath v. Dinanath where the point was not further canvassed. Mr. Bose referred as to Nilmamud Sarkar v. Baul Chandra Das, 14 C. W. N. 73 : (2 I. C. 994) where a kabuliyat by itself was held not to constitute a lease. In that case, nothing further was done after the execution of the kabuliyat; the lessee never got possession. The case is accordingly distinguishable.

49. Mr. Bose submitted that the general rule stated above is subject to 2 exceptions mentioned in Raimoni's case, (39 Cal. 1016 : 14 I. C. 540) itself.

50. The first exception was said to be that where the parties to the lease intended that the instrument should be a bilateral document and executed by both parties, the instrument will be valid only when the same is executed by both. This exception was said to be implicit in the reasoning of the learned Judges at p. 1022. But conceding that such an exception does exist, I am of opinion that in the present case, it is abundantly clear that execution Only by the lessee and acceptance by the lessor were all that was intended. Clause (16) of Ex. 1 shews that the document was being executed in anticipation of sanction by the competent Revenue Authority; as such, execution of the document at that stage, by the Government could not have been contemplated.

51. Exhibit B (1) notice to the lessee Amiya Pal Chowdhury under Section 10 (4), Regulation VII [7] of 1822, dated 29-3-1941 required the lessee to 'take the settlement and sign the jamabandi and the kabuliyat.'

52. The order sheet of the Assistant Settlement Officer, Ex. 3 (d), order dated 31-3-41 also states that kabuliyat was executed by the lessee.

53. Exhibit D agreement dated 31-3-41 executed by Amiya Pal Chowdhury also speaks of Ex. 1 as a kabuliyat. Exhibit 6 (a) memorandum of the Settlement Officer refers to Ex. 1 as a kabuliyat. In the plaint, paras. 10, 13, 14, the plaintiff Amiya Pal Chowdhury refers to the lease Ex. 1 as a kabuliyat.

54. Mr. Bose referred us to various matters which, in his submission, indicated that the intention must have been that the lease Ex. 1 should be executed by both parties.

55. In the first place, reference was made to the description of the document Ex. 1 which was stated to be an indenture. This is inconclusive.

56. In Norton on Deeds, to which Mr. Bose referred us, it is stated that

'a deed is a writing (i) on paper, vellum, or parchment, (ii) sealed, and (iii) delivered whereby an interest, right or property passes, or an obligation 'binding on some person is created or which is in affirmance of some act whereby an interest, right or property has passed.'

It is further pointed out by the author that after the Law of Property Act 1925, the executant is required also to sign or place his mark and sealing alone is not sufficient. The above remarks do not throw any light on the point before us.

57. The argument based on the use of the word indenture proceeds on a misconception of the nature of a kabuliyat. As was pointed out in Raimoni Dasi's case, 39 Cal. 1016 at p. 1022: (14 I. C. 540) a kabuliyat is not an unilateral expression of intention on the part of the lessee only but is the embodiment of the whole contract between the lessor and the lessee.

58. In the second place, reference was made by Mr. Bose, to para. 3 of Ex. 1 which states that 'the Secretary of State hereby leases', as also to the lessor's covenant in Clauses (3), (11) and to the use of the expression 'hereby demised' in Clauses (9), (14). It was suggested that these can only bind the lessor on his executing the documents. The answer to this is contained in the passage from Raimoni Dasi's case, (39 Cal. 1016 : 14 I. C. 540) just quoted.

59. In the third place Mr. Bose submitted that the above view he contended for is, to quote his own words, 'further backed and sup-ported by recent legislations'.

60. He referred us to (1858) 21 Vict. Cap. 106, Sections 39, 40, (1859) 22 & 23 Vict. Cap. 41, Section 2, (1870) 33 & 34 Vict. Cap. 59, Sections 1, 2, (1915) 5 & 6, George v, cap. 51, Section 13, Government of India Act, 1919, Section 30. It is not necessary to refer to these statutes. The lease was executed in 1941, after the Government of India Act, 1935, had come into force. Mr. Bose referred us to the case of Krishnaji Nilkant v. Secy, of State, : AIR1937Bom449 . The case related to a contract on behalf of the Secretary of State. It was held that according to the provisions of the law and the rules in force, the contract must be by a deed executed on behalf of the Secretary of State and in his name by the proper authority. The case is directly covered by Section 175(3), Government of India Act, 1935, which reads as follows:

'.......all contracts made in the exercise of the executive authority of the Federation or of a Province, shall be expressed to be made by the Governor-General or by the Governor of the Province, as the case may be, and all contracts and all assurances of property made in the exercise of the authority shall be executed on behalf of the Governor-General or Governor by such person and in such manner as he may direct or authorise.'

61. The requisite direction or authorisation is to be found in the Bengal Statutory Rules and Orders, 1940, 4th Edn., Vol. I, p. 38.

62. We need only refer to Clause (8) and (37) at pp. 88 and 42.

63. Clause (8) provides that in case of 'contracts and other instruments in matter connected with the lease or sale of land', the document is to be executed by 'Collector of Districts and Deputy Commissioner'. Clause (37) which was added by Notfn. No. 1676 J., dated 10-5-1939, provides that 'contracts and other instruments in matter connected with the lease of lands in the course of settlement operations', the document is to be executed by 'Land Revenue Settlement Officer'.

64. In construing these clauses, we must bear in mind the opening words of the notification which recite that the notification is made in exercise of the powers conferred by Section 175(3), Government of India Act, 1935, and relate to contracts and assurances.

65. In my opinion the lease, Ex. 1, is neither a contract nor an assurance. It is thus outside Section 175(3), Government of India Act. Necesarily the above notification and the clauses mentioned do not apply.

66. Mr. Bose also relied on Rules 7 and 8 of the Bengal Waste Lands Manual, 1936 at p. 2. Rule 8 states that the Rule can be relaxed by the Board of Revenue. The case of Sakina Khatoon v. Khirode Chandra : AIR1942Cal173 which related to the Sale Law Manual, lays down that the Rules contained therein have not the force of law.

67. In my opinion, Rules 7 and 8 contemplate cases where the law otherwise requires the document to be executed by the Government. I am also of opinion that the Rules contained in the Bengal Waste Land Manual have no statutory force and are not mandatory and an infraction of the Rules does not render the lease void on that ground alone.

68. Mr. Bose also referred us to Rule 275, Bengal Survey and Settlement Manual, (1935) p. 72 which says that Collectors or Deputy Commissioners are authorised to execute leases on behalf of the Government.

69. Rule 576 (1), Bengal Survey and Settlement Manual, 1935, however, makes the Rules in the Manual inapplicable to settlement of waste lands (such as the Sundarbans) which are governed by the Rules for the waste lands grants.

70. Mr. Bose also referred us to the cases of Peto v. Peto, (1849) 60 E. R. 1003 : (16 Sim. 590), Wilson v. Woolfryes, (1817) 105, E. R. 1270 : (6 M. & S. 341), Cardwell v. Lucas, (1836) 150 E. R. 691 : (2 M. & W. 111), Pitman v. Woodbury, (1848) 154 E. R. 732 : (3 EX. 4). These cases do not assist him. The above decisions deal with cases when the deed is made upon the footing that both parties must sign before the document can operate, moreover the execution by the party concerned was necessitated because of the Statute of Frauds.

71. In my opinion, the English law is correctly summarised in Halsbury's Laws of England vol. X, p. 271, p. 216 (Hailsham Edn.)

'Any person named or sufficiently indicated in a deed poll may sue to enforce any obligation thereby undertaken in his favour, notwithstanding that he has not executed the deed, but he must observe all stipulations made therein of which the performance was condition precedent to the liability of the maker of the deed; and any person named as a party to the deed inter partes may sue upon any 'covenant made with him and therein contained without having executed the deed, unless the transaction carried out thereby was such that his own execution of the deed was a condition precedent to the enforcement of the covenant.'

The present case is covered by the rule just quoted.

72. The facts of the present case clearly show that the lease Ex. 1 was intended to be operative even though the Government did not execute the same.

73. In the present case lease was approved and accepted by the Revenue Authorities after its execution, the signature of the lessee was authenticated by the Assistant-Settlements Officer. The lessee paid revenue for the May kist and the Government in the case accepted it, the Towji Register was amended and the proceedings for revenue sale (were held ?) on the footing of the stipulation in the lease. The fact that in the two other leases of adjoining estate, between Amiya Pal Choudhury and the Government, Ex. 1 (c) and Ex. 1 (d), the documents were executed by both, is not very material.

74. I am clearly of opinion that the lease Ex. 1 though executed only by the lessee is effective, and the fact of its non-execution by the lessor who had accepted it and acted upon it, does not render it void. The facts and circumstances do not show that the intention of the parties was that the lease would be operative only if executed by both lessor and the lessee. The first suggested exception does not apply to Ex. 1.

75. The second exception according to Mr. Bose is that where the Legislature has prescribed a form, that form has to be adopted. Reference is made to p. 1024 in Raimoni's case, 39 cal. 1016 : (14 I. C. 540).

76. In this connection, Mr. Bose traced the history of legislation regarding Sundarbans lands.

77. It is not necessary to deal with genesis of the Rules now in force.

78. Suffice it to say that in 1853 the Rules were more or less crystallised. The Rules of 1853 govern the large majority of Sundarbans grants. Rule 255 (11) prescribes the form of a potta. This appears from Pargiter's Revenue History of the Sundarbans (1934 Edn.) pp. 93, 95.

79. In 1879, the large capitalist Rules for grants of Sundarbans lands were promulgated

80. The present settlement was made when the Bengal Waste Lands Manual 1936 was in force.

81. Rule 6 (4) of the Manual speaks of large capitalist Rules.

82. Rule 13 lays down that with the issue of large capitalist Rules and small capitalist Rules, the policy of making proprietary settlements was abandoned in favour of leasing or farming.

83. One of the conditions was that the area should not exceed 5000 bighas and should not be less than 200 bighas in case of large capitalist leases.

84. Rule 14 states that the lease conferred a hereditary and transferable occupancy right. The effect of this has been held to be that the lease conferred the status of a tenure-holder with a right of successive renewals for periods of 30 years.

85 Rule 15 lays down that the terms of renewed leases would be in the discretion of the Collector.

86. Rule 16 deals with forms of large capitalist leases.

87. Appendix A p. 11 gives the form of a kabuliyat.

88. Appendix B p. 13 gives the form of an agreement.

89. Appendix c p. 15 gives the form of leases for 99 years.

90. Appendix D p. 17 gives, the forms of renewed leases for Sundarbans held under the large capitalist Rule of 1879.

91. The present lease Ex. 1 is a replica of the last form with the addition of two provisos.

92. Reference was also made to Rules 7 and 8 which lay down that Collectors and Deputy Commissioners are authorised to execute such leases and that this should not be departed from without the sanction of the Board of Revenue.

93. In the present case, the area leased out by Ex. 1 exceeded 5000 bighas.

94. In Ex. 1 (b), which was renewed by Ex. 1 (a) and Ex. 1, the area was stated to be 1542 bighas. In the report by the Settlement Officer dated 14-1-1941, Ex. 6, the area was said to be 1824 acres i. e. about 5075 bighas. This area was also the area recorded in the C. S. operations. Ex. C. part II, P. 62, lines 18-20.

95. Rule 13 is therefore excluded and the form is not applicable.

96. The fact 'that in point of fact the form in Appendix D has been substantially adopted does not necessarily show that the intention was that the instrument should be executed by both parties.

97. The exception, if any, as suggested does not apply in this case.

98. My conclusion, therefore, is that the lease Ex. 1 was accepted by the lessor and that though it was executed by the lessee alone, it is not void on the ground that it was not executed also by the lessor.

99. Mr. Chakravarty next contested the view of the Court below that under Section 107, T. P. Act the lease Ex. 1 must be executed by both the lessor and the lessee.

100. Section 55, Transfer of Property (Amendment) Act, 1929 (XX [20] of 1929) added Para. 3 in Section 107, T. P. Act. It provided that where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one each such instrument, shall be executed by; both the lessor and the lessee.

101. In the first place, the lease Ex. 1 is not a registered one and therefore this provision does not apply.

102. Moreover if Ex. 1 is a lease for agricultural purposes by operation of Section 117, T. P. Act, Section 107 would be excluded.

103. We have, therefore, to see whether the lease Ex. 1 was for agricultural purposes or not. Exhibit 1 was a renewed lease. Clause (5) proviso states that the lot was 'originally settled for purposes of reclamation and for, bringing the area under cultivation.'

104. Clause (11) confers on the lessee the right to claim the cost for bringing the lands under cultivation in case of compulsory acquisition.

105. Clause (12) (a) states that the property? demised shall be used by the lessee 'for purposes of reclamation and cultivation and that it shall be his duty and that of his tenants and subtenants of any degree to maintain it in a condition suitable for such purposes.'

106. Clause (12) (b) makes the lessee responsible for maintaining embankments for keeping the lot under cultivation.

107. Clause (12) (c) provides that the act of the lessee or his tenants or sub-tenants in rendering a substantial part of the demised premises unfit for cultivation at any time shall be a breach of Clause (12) (a).

108. Hence the lease, Ex. 1, unmistakably shows that the purpose of the lease was agricultural.

109. This view is supported by the decision, in Jagadish Chandra v. Lal Mohan, 7 I.C. 864: (13 C. L. J. 318).

110. The Court below overlooked the definition of a tenure in Section 5(1), Bengal Tenancy Act, when it observed that 'Amiya Pal Choudhury was not excepted to cultivate by labourers himself.' (sic)

111. The Court below relied on the decision in Promotho Nath v. Kali Prasanna, 28 cal. 744. The quotation from the lease in that case appearing at p. 746 clearly shows that in that case the purpose was non-agricultural. The court below also relied on the case of Ballabha Das v. Murat Narain Singh, : AIR1926All432 . In that case the entire village was leased to the lessee who was put in possession thereof and was authorised to let out land to tenants and to make collections. This was clearly a lease merely for collection of rents merely from non-agricultural tenants.

112. The cases relied on by the Court below have no application to the facts of the present case.

113. Mr. Bose referred us to Pargiter's Revenue History of the Sundarbans, Section 254, p. 92 to shew that the object of the Government in granting Sundarbans Settlement was to reclaim the area near the city of Calcutta which was the abode of wild animals and a shelter for pirates and swindlers and was the breeding ground for pestilential diseases. This has nothing to do with the purpose for which the lease EX. 1 was given. Such purpose has to be gathered from the lease Ex. 1. Neither Ex. G, the order of the Settlement Officer, nor Ex. 6, Report of the Settlement Officer to which Mr. Bose referred, is of any help to his client.

114. My conclusion, therefore, is that the lease Ex. 1 was for agricultural purposes and as such Section 107, T. P. Act, was excluded.

115. Mr. Chakravarty also contended that because the lease Ex. 1 was a Crown grant, the Crown Grants Act XV [15] of 1895 excluded the operation of the whole of the T. P. Act.

116. The relevant provision in the Crown Grants Act is Section 3 which runs as follows:

'All provisions, restrictions, conditions and limitations over, contained in any such grant or transfer as aforesaid, shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding.'

117. The Court below was of the opinion that the Crown Grants Act did not render all the provisions of the T. P. Act inapplicable but when the Court is required to construe a Government grant it must do so irrespective of the provisions of the T. P. Act. The Court below relied on the case of Dost Mohamed Khan v. Bank of Upper India, 3 ALL. L. J. 129 : (1906 A. W. N. 44), Secretary of State v. Nistarini Annie Hitter, 6 Pat. 446 : A.I.R. (14) 1927 Pat. 319, Musa Kutti v. Secretary of State, 43 Mad. 65 : (A. I. E. (7) 1920 Mad. 413).

118. The last two cases do not support the view of the Court below. These cases dissent from the view taken in Munshi Lal v. Notified Area of Baraut, 36 ALL. 176 : (A. I. B. (1) 1914 ALL. 120) which adopted the view in Mahomed Khan's case, 3 ALL. L. J. 129 : (1906 A. W. N.44).

119. Kallengal Musa's case, 43 Mad. 65 : (A. I. R. (7) 1920 Mad. 413), was a case of lease of Crown lands. It was followed in Secretary of State v. Nistarini Annie Hitter, 6 Pat. 446: (A. I. R. (14) 1927 Pat. 319), Rupan Singh v. Akhaj Singh, 10 Pat. 203 : (A. I. R. (18) 1931 Pat. 268).

120. In the case of Jnanendra Nath v. Jadunath : AIR1938Cal211 , this Court held that grants or leases of Sundarbans lands are Crown grants and that the Crown Grants Act supersedes at any rate the Transfer of Property Act. This Court was further inclined to the same view in Ambuj Bashini v. Secretary of State : AIR1938Cal229 .

121. Mr. Bose contended that the lease Ex. 1 not having been executed by the Government cannot be regarded as a Crown grant within the Crown Grants Act. The Act does not require that the grant should be evidenced by a writing signed by or on behalf of the Crown. All that it requires is that in point of fact the transaction must have the effect of a grant by or by the authority of, the Crown. For reasons already given I have held that the lease, Ex. 1, was a bilateral document and as such operated as a grant by the Crown to the lessee.

122. The conclusion therefore follows that the amended Section 107, T. P. Act is not applicable to the lease Ex. 1.

123. The Court below was of opinion that the case of Rupan Singh v. Akhaj Singh, 10 Pat. 203: (A I. R. (18) 1931 Pat. 268) supported the view that 22 and 23 Vict Cap. 41 required that Ex. 1 should be executed by the Collector. The effect of this Parliamentary statute was considered in the case of Jnanendra Nath v. Jadupati : AIR1938Cal211 where it was held that grants or leases of Sundarbans lands are governed by the Crown Grants Act. I respectfully agree with the view taken in the case last cited. It dissents from the view of the Court below that the lease became inoperative for want of execution on behalf of the lessor viz., the Secretary of State or the Governor.

124. The Court below seemed to be of the opinion that if the lease Ex. 1 was a Crown grant, Section 107, T. P. Act in so far as it required registration would be excluded. The Court below further held that Section 90(1)(d), Registration Act would exclude the operation of Section 17(1)(d), Registration Act. The Court below was however, of the opinion set forth in Rule 56, Bengal Waste Lands Manual, 1936, p. 63, which provided that 'the counter part which the lessees should be called upon to execute must be registered under the Indian Registration Act.'

125. I have already held that Ex. 1 is outside the Bengal Waste Lands Manual, and that the Rules in the Manual have not the force of law. As such Rule 56 cannot be invoked in sup-port of the view that EX. 1 should be registered.

126. Mr. Bose challenged the view of the Court below in so far as it held that the lease Ex. 1 did not require registration under Section 17(1)(d), Registration Act.

127. Mr. Chakravarty on the other hand contended that Section 90(1), Clauses (a) and (d), Registration Act, both applied to the present case and as such Section 17(1)(d) of the, Act was inapplicable.

128. I shall first deal with Section 90(1)(a) which speaks of

'documents issued, received, of attested by any officer engaged in making a settlement or revision of settlement of land revenue, and which form part of the records of such settlement.'

129. The document EX. 1 was, as I have already stated, signed by the lessee in the presence of the Assistant Settlement Officer who signed the document as having been signed by the lessee in his presence. It was accordingly attested by him. The Assistant Settlement Officer took a prominent part in the matter of the settlement and was an Officer engaged in making the settlement; vide Ex. 3 (d) and Ex. C. The lease Ex. 1 was filed before and confirmed by the Settlement authorities. It undoubtedly formed part of the proceedings of the settlement. In my opinion, Section 90(1)(a), Registration Act, applied to the facts of the present case.

130. It remains for me to consider whether Section 90(1)(d) applied. The clause refers to

'sanads, inam title-deeds and other documents purporting to be or to evidence grants or assignments by Government of land or of any interest in land.'

131. There is a conflict of opinion on the question whether the expression 'other documents' should be read ejusdem generis with the preceding words 'sanads, inam, title deeds etc.' and would exclude leases. In Munshi Lal's case, 36 ALL. 176 : (A. I. R. (1) 1914 ALL. 120), a restricted view was taken and leases were held to be excluded. A contrary view was taken in Kallingal Musa's case, 43 Mad. 65 : (A.I.R. (7) 1920 Mad. 413) and Nistarini's case, 6 Pat. 446: (A.I.R. (14) 1927 Pat. 319). The latter view is supported by the decision in Hassan Ali v. Chutterpat Singh, 19 Cal. 742. Mulla in his Indian Registration Act is of the opinion that the latter view is correct.

132. I, therefore, hold that the latter view should be correct and the lease Ex. 1 comes within Section 90(1)(d), Registration Act also.

133. In support of his submission that Section 90 will not apply in the present case, Mr. Bose further contended that the lease Ex. 1 was incomplete as regards the Crown, the Crown not having executed it and cannot be called a Crown Grant. I have already held that it is a Crown Grant. Mr. Bose also contended that the reason for the rule must be to exempt Crown servants from attending registration offices. The reason does not apply where the Crown does not execute the document. The marginal note to Section 90 is 'Exemption of certain documents executed by or in favour of Crown.' The clause is thus wide enough to cover documents which are executed by the Crown and also documents executed by other persons, in favour of the Crown.

134. Mr. Bose lastly contended that the word or in the marginal note showed that the section referred only to unilateral documents and not to bilateral documents. The argument is plausible but has no substance. Where a document is executed by the Crown and a third party, it is nevertheless one executed by the Government and as such registration of the document is excluded.

135. The above discussion leads me to hold that the lease Ex. 1 did not require registration.

136. I have already stated that the Court below was of the opinion that the settlement with Amiya Pal Choudhury was duly confirmed by the appropriate authority and though the confirmation was made after the execution of the document, yet as it took place long before the sale, the confirmation related back to the date of document and the validity of the sale cannot be challenged on this ground.

137. Mr. Bose contended that the view taken by the Court below was not correct.

138. His contention is that the case came within items of Rule 632, Bengal Survey and Settlement Manual, 1935. The material portion of Rule 632 runs as follows :

'Power to confirm the settlement of land revenue .......... specified in the first column of the table delegated by Governor in Council under Section 10 (1), Regulation II [2] of 1819, subject to limitations in the 3rd column.3 Temporary Director of Rent roll (insettlement in Land Records agricultural land,which the rent and Surveys, raiyat rent roll)roll is prepared not exceedingunder Chapter X Ra. 10,000 for aof the Bengal term limited to 15Tenancy Act, years.'1885.

139. If the above Rule stood by itself, item 3 would not apply and confirming authority would not be the Director of Land Records.

140. A correction slip dated 6-1-1937 has, it appears, been printed by the Government. The slip reads thus:

'Slip 13, dated 6-1-1937

Rule 632 (1), p. 161.

Column 3, against items (2) (3) add--and in case of Sundarban lots settled under the Large Capitalist Rules of 1879--rent roll not exceeding Rs. 10,000 for a term of 30 years.'

141. The slip makes item (3) applicable to the present case and the proper confirming authority would be the Director of Land Records and Surveys, and the confirmation in the present case being by the Director of Land Records and Surveys, would be valid.

142. Mr. Bose, however, contended that the correction slip has no force in the absence of the Notification in the Gazette. Mr. Bose referred us to the evidence of Mr. A.B. Ganguly, Revenue Secretary to the Government of Bengal, who was examined on commission. His evidence is as follows:

'As far as I have been able to trace the delegation of power noted in the correction slip No. 13, dated 6-1-1937, Rule 632 (1) of the Bengal Survey and Settlement Manual 1935 has not been notified in the Gazette.'

143. The Court below was of the opinion that the presumption of regularity of official acts arose in the case. Though there may be room for suspicion, I agree with the Court below that the correction slip follows the requisite notification which has been either mislaid or lost. On the strength of the slip, the Director of Land Records and Survey has for several years been confirming these settlements, and the Court should not lightly invalidate all Such settlements and unsettle titles of Settlement-holders merely because the notification cannot be traced. The fact that the Director of Land Records and Survey confirmed the settlement a few days later, is not material in this case. The confirmation when made related back to the date of the commencement of the lease. In fact the lease Ex. 1 Clause (16) envisaged this. The sentence 'the settlement shall not be valid if it is set aside by such authorities' shows, in my opinion, that the lease was merely voidable at the instance of the superior revenue authority. The case was not avoided but confirmed by the latter before 7-4-1941, vide Ex. A (1). The arrears of revenue accrued and the proceedings for revenue sale were initiated much later than the date of confirmation. The validity of the revenue sale cannot, in my opinion, be challenged on this ground.

144. The Court below was also of the opinion that the August kist was operative and that the revenue which had accrued was payable according to the kist of 28th August.

145. Mr. Bose also challenged this finding of the Court below on this point.

146. In order to decide this point, I proceed to state a few facts.

147. The previous settlement of the disputed touzi with Amiya Pal Choudhury was due to expire on 31-3-1941.

148. In order to settle the touzi, the Government had a draft, record of rights prepared under Section 103, Bengal Tenancy Act. Thereafter the Assistant Settlement Officer proceeded, to settle fair and equitable rent of the estate, vide Order No. 1, dated 15-8-1940, Ex. 3 (d), order sheet of the settlement proceedings. Exhibit G (1) shows that the Settlement Officer disposed of the objections Ex. E (1) filed by Amiya Pal Choudhury on 29-10-1940. The rate was fixed at Rs. 3-8-0 per annum. The rent-roll was thereafter attested and remained for draft publication for one month from 12-11-1940 to 11-12-1940, vide order 7, dated 11-11-1940, Ex. 3 (d). It further appears from Ex. 3 (d) that on 12-12-1940, two objections filed to the draft rent roll were disposed of. It appears that on 14-1-1941 the Settlement Officer submitted his final confirmation report, Ex. 6. The report stated that the revenue had been settled at Rs. 2873 and the period of settlement had been fixed for 30 years from 1-4-1941. On 23-2-1941, the Settlement Officer and the Assistant Settlement Officer held a local enquiry. The report Ex. A (1) is dated 25-2-1941.

149. On 7-3-1941 the Assistant Settlement Officer submitted his report Ex. C for the settlement of land revenue under Section 104F, Bengal Tenancy Act.

150. The report stated that the revenue will be Rs. 2873 or Rs. 3352 against the existing revenue Rs. 1157, according as the lessee accepts or does not accept the settlement unconditionally. The period of settlement will be 30 years from 1-4-1941. The area was stated to be 5142 bighas.

151. The report concluded as follows: '(8) It is expected that the estate will be reclaimed within 2 or 3 years and brought under cultivation. The kists prevailing in the cultivated area of Sunder-buns estate should therefore be conveniently adopted by the estate. The kists should therefore be four as follows : 28th May-l/8th, 28th August-l/8th, 12th December-3/8th, 28th February-3/8th=16as.'

152. The revised final confirmation report Ex. C with the note of the Settlement Officer having been received by the Director of Land Records and Surveys, the latter approved the settlement proceedings as recommended and confirmed the land revenue, and directed that an additional clause at the end of Clause 5 should be inserted. The order Ex. A is dated 29-3-1941. The order was sent to the Settlement Officer by Memo No. 10-2110C dated 29-3-1941. By Memo No. XXXVI/22F, dated 2-4-1941, the Settlement Officer sent a copy of Memo No. 10-2110-C dated 29-3-1941 with a copy of the form of lease vide Ex. 7.

153. It appears from the order sheet Ex. 3 (d) Order No. 11 dated 29-11-(sic)-1941 that the Assistant Settlement Officer had got Letter No. 10-2110 dated 29-3-1941. Notice upon the lessee to execute on 31-3-1941 was issued on 29-3-1941 Copy of the notice sent to the lessee Amiya Pal Choudhury and dated 29-3-1941 was marked as Ex. B/1.

154. The lessee executed the lease Ex. 1 on 31-3-1941. Exhibit 1 states the kists as follows :

Net revenue1. 28th May Rs. 718-0-0.2. 28th August Rs. 718-0-0.3. 12th December Rs. 718-0-0.4. 28th February Rs. 719-0-0.---------------Total ... Rs. 2873-0-0.

155. Order sheet- (EX. 3 (d)) shows that the Kabuliat was executed on 31-3-1941 and that on the same day the records were directed to be sent to the press for printing. On 31-3-1941 the lessee Amiya Pal Choudhury also executed an agreement Ex. D waiving his right to institute any suit against the Province of Bengal with regard to the assessment of revenue and the terms of the Kabuliat. Order No. 13 dated 2-4-1941 shows that on that date final arrangement of land, revenue was submitted.

156. On 4-4-1941 the Settlement Officer by his Memo No. 1624 dated 4-4-1941 Ex. 6 (a) on the subject--Final arrangement report for realisation of land revenue in Crown Estate No. 2935 (Lot 135, part v, of 24-Parganas)--stated that the lessees have accepted settlement unconditionally and executed Kabuliat and final agreement and the land revenue may finally be approved for 30 years from 1-4-1941 to 31-3-1971. Proposed kists for revenue are : 28th May-Rs. 718, 28th August-Rs. 718, 12th December-Rs. 718, 28th February-Rs. 719=Rs. 2873.

157. Referring to Memo No. 1624 dated 4-4-1941 Ex. 6 (a), the Director of Land Records and Surveys' wrote to the Settlement Officer that the proposal was approved. The letter is Ex. A (1)/10 (f)-339-C, dated 7-4-1941. Exhibit A (2) is the memorandum.

158. It was first contended that the kists could not be altered in the renewed lease. In the earlier lease EX. 1 (a), the kists were December, January, February, March. There was no August kist. Clause (5), however, provided that the renewed lease may be on such terms as the Government think fit. The contention has no force.

159. It was next contended that no special notice was given as required by the Sale Law Manual. That the lessee knew about the change in the kists is apparent from the fact that he paid the May kist, which was not in the earlier lease. The lessee is a responsible person. He executed 2 documents on 31-3-1941. He has his residence in Calcutta and sound legal advice was available. The notice is only required when the kists are changed during the currency of the temporary settlement. The contention has no substance.

160. It was further contended that Rule 637, Bengal Survey and Settlement Manual 1935 was not complied with as the lessee or his tenants were not consulted. It was also pointed out that the agricultural condition, viz., that the estate yields only one crop (i. e. Aman crop) was not borne in mind. The evidence no doubt establishes that only Aman crop is grown in the lot. The Rule, however, uses the words, 'whenever possible' and is not mandatory. I have already observed that the lessee must have been consulted. The lands were mostly jungly at the time. The report of the Assistant Settlement Officer, Ex. C shows that only Krishna Mohan Mukherjee claimed a tenancy right which was negatived. Moreover, Rule 576, Bengal Survey and Settlement Manual 1985 makes Rule 637 inapplicable to Sundarbans lands.) Moreover by the agreement dated 31-3-1941, Ex. D, the lessee precluded himself from disputing the terms of the lease. This contention has also no substance.

161. It was lastly contended that the suggestion of the Assistant Settlement Officer in his report Ex. C, has been already approved by the higher authority, and it was not open to the latter to change the kists as suggested by him. It appears from the facts already recited that the kists proposed by the Assistant Settlement Officer were never approved by the Director of Land Records at an earlier stage. That there was a change in the kists before 31-3-1941 admits of no doubt, as the lease Ex. 1, recites the new kists. This was done at the instance of defendant l. This fact was deposed to by the Assistant Settlement Officer witness 5 for defendant l. The Court below accepted his evidence and I see no reason to differ.

162. The new kists were insisted in the Kabuliat, Ex. 1. This was approved a few days later by the Director of Land Records and Surveys. Such ratification was provided for in Clause 16 of Ex. 1.

163. The objections raised by the appellant to the kists in Ex. 1 are of no substance. I agree with the Court below that the August kist was operative and valid and that the revenue was legally recoverable and that the sale is not vitiated on this ground.

164. Mr. Bose has not challenged the finding of the Court below that the irregularities spoken of were more or less fancied and that they did not result in any loss to the plaintiff Amiya Pal Choudhury.

165. The above discussion leads me to hold that the lease, EX. 1, was a valid document and that the sale was perfectly valid, and that the plaintiff Amiya Pal Choudhury is not entitled to any relief.

166. The result, therefore, is that this appeal is allowed, the judgment and decree of the Court below are set aside and the plaintiff's suit dismissed. The appellant is entitled to his costs in this Court and the Court below.

167. F. A. 205 of 1946. -- I shall now deal with First App. No. 205 of 1946.

168. In this appeal, Manindranath Dinda, the plaintiff is the appellant.

169. The respondents 1-17 are the defendants who claimed a tenancy right and a protected interest.

170. Respondent 18 is Amiya Pal Chowdhury the defaulting proprietor.

171. I have already set out the pleadings of the parties.

172. We are concerned in this appeal with the findings on issues (5), (6), (8).

173. The findings on issue (5) have been set out in my judgment in First App. No. 204 of 1946 and it is not necessary to repeat the same or the reasons I have already given for my findings.

174. Issue (6) concerns the status of defendants 1-17.

175. The Court below found that defendants 1-17 were licensees and that their interest was not a protected one.

176. In the Court below, Mr. Bose, learned Advocate on behalf of Amiya Pal Chowdhury, wanted to oppose the claim of defendants 1-17 but refrained from opposing their claim on an assurance by that Court that 'he will not be in the least prejudiced by any finding which the Court may make, regarding the said defendants' and that 'if he has any right against the said defendants, on this score, that may be reserved for the future'.

177. I can see no justification for the said assurance or reservation. All the parties led evidence on the points in issue, as such, the rights of all parties should have been decided in these suits.

178. I have accordingly heard Mr. Bose, on the issues arising in this appeal also.

179. I shall now record my findings on the points which were argued in this appeal by Mr. Chakravarty for the appellant Manindranath Dinda and by Mr. Gupta for defendants 1-17 and by Mr. Bose for defendant 18.

180. It may be pointed out at the outset that the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950 (West Bengal Act VII [7] of 1950) came into force on 15-3-1950.

181. This Act was passed by the West Bengal Legislature. The Act amended the Central Act, Bengal Land-Revenue Sales Act, 1859 (XI [11] of 1859). Mr. Chakravarty abandoned the point made in his opening that the Act was ultra vires of the West Bengal Legislature. It is accordingly, not necessary to decide the point.

182. Section 4, West Bengal Act, VII [7] of 1950, substituted a new section for the old Section 37.

183. The amended Section 37 (1) disentitles

'the purchaser of an entire estate in the permanently settled district of West Bengal sold under this Act for the recovery of arrears due on account of the same' from avoiding and annulling,

(a) tenures and holdings which have been held from the time of the permanent settlement either free of rent or at a fixed rent or fixed rate of rent, and

(b) (i) tenures and holding not included in exception (a) above quoted, and

(b) (ii) other leases of land whether or not for purposes connected with agriculture or horticulture,

existing at the date of issue of the notification for sale of the estate under this Act.' * * *

184. It is conceded that the above amendment is retrospective and governs this appeal. This is also clear from Section 7 of the West Bengal Act VII [7] of 1950.

185. In this view, the relevant inquiry in this appeal is whether the defendants 1-17 were lessees of lands at the date of the issue of the notification for sale. In the present case, the above notification was issued on 8-12-1941. The question, therefore, is whether defendants 1-17 or any of them were lessees on 8-12-1941.

186. In order to determine this question a few facts have to be stated.

187. I have already referred to the fact that since the settlement of 1901 the lessees did not take steps for reclaiming the lands, in spite of the conditions in the leases requiring, the lessees to do so. The Settlement of 1908 was due to expire on 81-3-1941.

188. On 23-2-1941 the Settlement Officer accompanied by the Assistant Settlement Officer held a local inquiry. The report of the Settlement Officer dated 25-2-1941 EX. A (1) shows that the outer embankment along the rivers and khals had been constructed for the major portion of the estate though not fully completed. The inner embankments had not been constructed. No reclamation had been made and the estate remained a forest. Reclaimers from Khulna had just then come and had commenced cutting of jungles. The construction of bheris was being done by three different Chakdars for different portions under certain arrangements with the lotdar. The report concluded by saying that the jungles had not been touched previously and the present settlement proceedings resulted in the taking up of reclamation work.

189. I have already referred to the report of the Assistant Settlement Officer dated 7-3-1941, Ex. C which mentions that Krishna Mohan Mukherji unsuccessfully claimed a tenancy right in a portion of the touzi.

190. On 16-2-1940, Amiya Pal Choudhury filed a petition in the Probate Court for granting leave to settle 2000 bighas lands on certain terms, Ex. B.

191. Exhibit G (1) (a) Book B, Part II, p. 1, shows that on 3-3-1940, K.M. Mukherji defendant 17 and one Swamiji (Jogi Bimalananda) were negotiating for a lease of some lands in the touzi with the Manager and the Advocate of A.N. Pal Choudhury defendant 18. The endorsement of A.N. Pal Choudhury dated 4-3-1940, 8 A. M. shows that 'the terms had been concluded and all further matters were to be concluded with his authorised agent Sachindra Babu.'

192. Exhibit G (1) (b) Book B Part II p. 2 which is endorsed on the back of Ex. G (1) (a) further shows that K.M. Mukherji was proposing the signing of an agreement and payment to be made.

193. On 6-3-1940, Amiya Pal Choudhury entered into an agreement with Krishnamohan Mukherji, defendant 17 and Swami Jogi Bimalananda, Ex. B (1), wherein the former agreed to grant subject to sanction of the Court which has been applied for in permanent raiyati lease 2500 bighas as per two separate raiyati deeds.

194. The principal terms were:

(1) Selami Rs. 1 (sic) per bigha(2) Rent -- Nil for 3 years-- 4 as. per bigha per year for 1350 B. S.8 as. per bigha per year for 1351 B. S.Re. 1 per bigha per year for 1352 B. S.(3) Rs. 500 out of the selami was paid on that day, the balance was to be paid by or before the end of Baisakh 1347 B. S.

(4) Execution and registration were to be performed on receipt of the balance of the selami. Two separate raiyati deeds for 1350 Bighas each more or less. Paragraph (2) Clause (b) runs as follows:'Embankment etc: --The land being jungly and absolutely unreclaimed now, embankments, to be made and maintained and jungles to be cleared and otherwise reclaimed by you at your costs by or before 31st March 1941 and time in regard to the matter is to be considered as of essence of the contract failing which the lease shall be forfeited and oil such reclamation cultivate as Rayat the same by yourselves or hired labourer or otherwise.'

195. The agreement contained at the end of the following provision:

'Be it noted that in case the sanction of the Court to grant such Rayati is not obtained within a reasonable period or is refused, the sum of Rs. 500 only together with such costs as you may ineur in regard to jungle clearing (sic) and you will be entitled to cancel this agreement by writing to me in due course. 2,500 bighas of land a little more or less in 2 respective plots as indicated in Lot No. 135.'

196. On the same day, an amalnamah, Ex. F (1), was granted on the terms hereunder :

'Possession of the property described in the Schedule of my agreement of 6-3-1940 delivered to you to enable yon to expedite and effect works of embankment and reclamation as required of you in P. 2 under Clause (b) of the said agreement.'

197. Receipt, Ex. H/1 (5), dated 3-5-1940 shews a payment of Rs. 300.

198. On 27-3-1940, Amiya Pal Choudhury entered into an agreement with Panchanan Mondal and 11 other persons regarding 3,000 bighas of land. The agreement is Ex. B/1 (b).

199. This agreement is similar in terms to Ex. E/1. There is. an endorsement of payment of Rs. 500.

200. An umalanamah, Ex. E/1 (d), of even date in similar terms as Ex. F/1 was granted.

201. Receipts, Ex. H/1 (4), dated 9-6-1940 and Ex. H/1 (2), dated 16-7-1940 shew payments of Rs. 500 each by Panchanan Mondal.

202. The order sheet, Ex. 3 or Ex. B of the Probate Court shews that the petition, dated 16-2-1940, Ex. B, was taken up on 24-7-1940. The matter was finally disposed of on 26-7-1940 when the Court observed as follows:

'The Administrator is permitted (under Section 307, Succession Act) to grant leases to the persons mentioned in the schedule to the petition filed to-day for the areas shewn against each, on the terms mentioned in the original petition filed on 16-1-1940 (para. 8) limited to the period for which the administrator himself is entitled to hold as the terms appear to be beneficial to the estate.'

203. The petition, dated 26-7-1940 is Ex. B (2).

204. Para. 6 of the petition mentions that one of the parties (obviously Swami Jogi Bimalananda) has resiled.

205. Para. 8 mentions that agreements for leases have been entered into with the persons mentioned in the form in Annexure 'A'.

206. On 25-9-1940 an agreement on similar terms as Ex. E (1) was entered into between Amiya Pal Choudhury and Natabar Biswas and another, Ex. E/1 (e). On the same day an amlanamah on similar terms as Ex. P (1) was granted, Ex. F/1 (a), with a proviso that 'if the lease be not executed on account of failure to obtain the permission of the Court, then you should give up possession of the lands without notice. '

207. Receipts, Ex. H/1, dated 17-6-1940, Ex. H/1 (1), dated 5-7-1940 and EX. H/1 (b), dated 22-10-1940 shew that Nakuleswar Mondal paid respectively Rs. 575, Rs. 125, Rs. 750.

208. All the receipts were signed by Brojogobinda Sen, an officer of Amiya Pal Choudhury. These receipts are genuine and prove payments of the sums mentioned. Amiya Pal Choudhury has not produced his papers to contradict the receipt of the above sums.

209. P. W.-1 Amiya Pal Choudhury deposed that the cost of reclamation was expected to be very heavy. As I shall shew later on, the lot was mostly reclaimed in 1347 B. S. and cultivation commenced in 1348. It is, therefore, clear that the defendants 1-17 spent large sums of money before the end of 1347, i.e., before 14-4-1941.

210. On 24-5-1941 Amiya Pal Choudhury filed a suit for possession of the lands in the possession of Krishna Mohan Mukherji defendant 17. The suit was registered as Title Suit 42 of 1941.

211. The plaint, Ex. 4, recited in para. (8) that the plaintiff having failed to get the permission of the Court for a permanent lease, requested the defendant Krishna Mohan Mukerji to restore possession and on the latter's failing to do so, sent a letter, dated 14-1-1941, asking the defendant to take a refund of Rs. 500 paid as selami and to submit an account of the costs incurred in regard to jungle clearing.

212. On 19-4-1941 the Sub-divisional Magistrate of Basirhat drew up proceedings under Section 144, Criminal P. C., against Sachindra Chandra Das Gupta Manager of Amiya Pal Choudhury and others on the basis of a police report that the latter were bent upon obstructing Krishna Mohan Mukherji in erection of bundhs.

213. The aforesaid Title Suit No. 42 of 1941 was ultimately withdrawn by the plaintiff Amiya Pal Choudhury with liberty to bring a fresh suit by order No. 19 dated 23-4-1942.

214. P. W. 3 Abdul Majid Molla deposed that Krishna, Nakul Doctor, Natabar Biswas, Sachin Mondal, Panchanan Mondal, Duryadhan Mondal have kutchari house in the disputed touzi No. 2935 and that since 1347, Krishna Babu and others have erected bundhs, cleared away the jungles, and have started cultivation since 1348 B. S., and that they have also erected huts for the purpose of cultivation and that they are still cultivating.

215. I believe this evidence coming as it does from the plaintiff's side.

216. P. W. 3 Krishna Mohan Mukherji also deposed that the terms of settlement were entered into between him and Amiya Pal Choudhury in the latter part of February 1940. The terms were recorded in the amalnamah, Ex. F (1), and possession was given by Sachindra Babu after a fortnight, that the work of reclamation was commenced in Baisakh 1347 B. S. and that embankments were erected all round the lands and that cultivation is going on since 1348 B. S.

217. D. W. 4 Nakuleswar Mondal deposed that he and the original 17 defendants had taken settlement of 3000 bighas and paid Rs. 3000, that they had talks with Amiya Pal Choudhury and that Sachindra, put them in possession of the entire area on 14-4-1940 and that they cultivate the land in Khas.

218. In my opinion, the above evidence should be believed. The evidence is also borne out by the documentary evidence Ex. A (1), etc., already referred to and is consistent with the probabilities of the case.

219. The fact that the defendants have no account papers is not sufficient to discredit their evidence.

220. My conclusion, therefore, is that negotiations for a settlement of the disputed land with defendant 17 for reclamation and cultivation as raiyats started in the month of February 1940, the main terms were concluded on 3-3-1940 and agreements were executed and amalnamahs were granted, selami was paid in part and defendant 17 was put in possession in March 1940. Krishna Mohan reclaimed the lands in 1347 B. S. built cutchery house and cultivated lands from 1348 B. S. Similar things happened in case of the other defendants 1-16. It does not appear that any rent was paid or tendered by the defendant.

221. The question is whether on these facts a lease may be held to have been created in favour of defendants 1-17.

222. In this country, occupation of a piece of land and assent previous, contemporaneous or subsequent, of the landlord to such occupation is one of the common ways of creating the relationship of landlord and tenant. In the case of Nityanand Ghose v. Kissen Kishore, (1864) W. R. (Gap) Act X [10] Rul. 82, Steer J. observed :

'We think that, though by the law of landlord and tenant, as applied in England, a person who takes and cultivates the land of another (there being no express permission to cultivate on the side of the landlord nor any express condition to pay rent on the part of the cultivator) would not be allowed to be regarded as a tenant, but treated as a trespasser, the peculiar circumstances of the country, preclude the applicability of the technical doctrine of the English law of landlord and tenant to such a case. Here it is a very common thing for a man to squat on a piece of land or to take into cultivation an unoccupied or waste piece of land. Tenancy in a great many districts in Bengal commences in this way, and where it so commences it is presumed that the cultivator cultivates by the permission of the landlord, and is under an obligation to pay him a fair rent, when the latter may choose to demand it. If he chooses to cultivate the Zemindar's lands and the Zemindar lets him, there is an implied contract between them creating a relationship of landlord and tenant. Therefore we think that, under the circumstances of the case, where the defendant avowedly holds and cultivates the plaintiff's lands, he is, by the universal custom of the country, the plaintiff's tenant', and while so holding and cultivating is bound to pay him a fair rent, and to give him a kabuliyat.'

223. In Azim Sirdar v. Ram Lal, 25 Cal. 324 at p. 327, the above principle was held to be applicable so far as agricultural 'lands are concerned.

224. In Berham Dut v. Ramji Ram, 18 C. W. N. 466 at p. 469 : (A. I. R. (1) 1914 Cal. 29), the relationship was said to be governed not only by contract but by status. See also Priyanath Manna v. Official Trustee, Bengal, : AIR1928Cal43 .

225. In Shrish Chandra v. Harendra Lal : AIR1940Cal19 , the principle in Nityananda's case ((1864) W. R. (Gap.) Act X [10] Rule 82) was held to be available in case of a cultivating squatter and not in case of a non-cultivator settling tenants on the land of another person ignoring the true owner.

226. In the facts of this case, the occupation of the lands by the defendants with the assent of the landlords and the subsequent reclamation of the same for purposes of cultivation and the cultivation of the same without let, in my opinion, created a relationship o| landlord and tenant according to the established usage of the country as stated in Nityanand Ghose's case ((1864) W. R. (Gap.) Act X [10] Rule 82).

227. It was however, argued by Mr. Chakravarty that the rule in Nityanand Ghose's case ((1864) W. R. (Gap.) Act X [10] Rule 82) had no application in the present case, because the assent by owner to the possession by the defendants was a contingent one, depending on the sanction of the Court.

228. In the first place, the amalnamah shews that the defendants were put into possession with a view to immediate reclamation for purposes of cultivation.

229. The agreements contemplated the sanction of the Court. Such sanction was given. It is urged that the sanction was not given to a permanent lease as agreed upon. The order of the Probate Court, recited already, was made under Section 307, Succession Act. The proposed lease was expressly stated to be for the benefit of the estate. The only limitation was that the lease was to enure for the duration of the title of the lessor. This was a necessary limitation which the law would have implied even if the Court had sanctioned a permanent lease. A raiyati lease was granted and such a lease would be heritable and would not be for a limited period and was substantially a permanent lease. Moreover, the contingency provided for was essentially for the benefit of the defendants and the option lay with them to affirm or repudiate the agreement. The defendants have affirmed the agreement and are agreeable to accept the other terms.

230. In my opinion there was substantial compliance and the contingency must be deemed to have been either (sic) fulfilled.

231. My conclusion, therefore, is that the defendants were, before the notification of sale, lessees and are within the amended Section 37 (1) (b) (ii) Act XI [11] of 1859 and the plaintiff Manindra Nath Dinda is not entitled to avoid or annul the leases in favour of defendants 1-17.

232. The appeal accordingly abates as provided in Section 7 (1) (b), West Bengal Act VII [7] of 1950. The appellant will be entitled to a refund of the court-fee paid on the memorandum of appeal under Section 7 (3) of the said Act as the suit and appeal were essentially for the ejectment of the defendants, on the strength of a purchase at a revenue sale, and I direct accordingly.

233. As the appeal fails on a ground which was not available to respondents 1 to 17 when the appeal was filed in this Court and as respondent 18 supported the appellant, I am of opinion that the parties should bear their costs in this Court and the Court below.

234. The result, therefore, is that the judgment and decree of the Court below are varied, the plaintiff Manindranath Dinda is entitled to a declaration of his title to the lands in suit; the other reliefs prayed for by him are refused. Parties will bear their own costs in this Court and the Court below.

Guha, J.

235. I agree.


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