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Champaran JaIn Vs. Sripati Nath Deb - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1938Cal430
AppellantChamparan Jain
RespondentSripati Nath Deb
Cases Referred and Ambica Prosad Das v. J.C. Galstaun
Excerpt:
- khundkar, j.1. this is a suit for the specific performance of an alleged verbal agreement for the grant to the plaintiff of a 51 years' lease, and in the alternative for the recovery of a sum of rs. 25,300 being damages, and costs incurred by the plaintiff in erecting a building on the land demised, or for an injunction. the facts in so far as they are admitted are as follows: the plaintiff on 31st march 1933 executed a document ex. 8 which is as follows:to most dignified zemindar srijukta baba sripati nath deb makam 67 b. beadon street, calcutta.out of your bustee (land) at no. 81 beadon. street, i take settlement today of more or less 5 (five) cottason the monthly rent fixed at rs. 103 one hundred and three rupees and i put into your sherista as deposit rs. 100 (one hundred rupees).....
Judgment:

Khundkar, J.

1. This is a suit for the specific performance of an alleged verbal agreement for the grant to the plaintiff of a 51 years' lease, and in the alternative for the recovery of a sum of Rs. 25,300 being damages, and costs incurred by the plaintiff in erecting a building on the land demised, or for an injunction. The facts in so far as they are admitted are as follows: The plaintiff on 31st March 1933 executed a document Ex. 8 which is as follows:

To most dignified zemindar Srijukta Baba Sripati Nath Deb Makam 67 B. Beadon Street, Calcutta.

Out of your Bustee (land) at No. 81 Beadon. Street, I take settlement today of more or less 5 (five) Cottason the monthly rent fixed at Rs. 103 one hundred and three rupees and I put into your sherista as deposit Rs. 100 (one hundred rupees) today towards the rent for a month and receive a receipt. Be it known that the rent of the said 5 cottas of land from a month hence, that is to say, from the 18th Baisakh 1340 B. S. shall continue to run at the said rate and (I) shall remain bound to pay the same. I shall not be competent to raise any plea or objection (thereto). Finis, 17th Chaitra 1339 B. S. Eng. 31st March 1933. (Sig). Champaran Jain. Tulaputty No. 81 (Eighty one) (Stamp one anna).

2. This must be read with Ex. 9 which is an acknowledgment granted by the defendant to the plaintiff.

To Sri Champa Lal Jain of No. 81, Cotton Street, Calcutta.

Having this day fixed the monthly rent of more or less 5 (five) cottas of land within the Bustee at No. 81, Beadon Street at 88 Rupees for 4 (four) Cottas at the rate of 22 rupees (per cotta) and at 15 for 1 cotta aggregating to 103 rupees (I) execute this receipt after receiving from you this day 100 (one hundred) rupees as deposit towards the rent for 1 month. Be it known that the rent of the said land shall continue to run at the aforesaid rate from 1 (one) month hence, that is to say from the 18th Baisakh of the year 1340 B. S. and (you) shall remain legally bound to pay the same. Finis. 17th Chaitra 1339 B. S. Eng. 31st March 1933. Srijukta Babu Sripati Nath Deb. by the pen of Sri Tarapada Chattopadhya (Stamp one anna).

3. On the 31st March 1933, the plaintiff deposited with the defendant a sum of Rs. 100 (rupees one hundred only) and was put into possession of the land in question. Thereafter it was agreed that the plaintiff would not be liable for rent until and from the 18th October 1933, and that the rent would be Rupees 111 per month. On 25th February 1935, the defendant instituted a suit against the plaintiff in the Court of Small Causes for arrears of rent, and subsequently instituted other suits. Into the circumstances of this litigation it is unnecessary to enter, and it is sufficient to say that the defendant admits that his claim for all arrears of rent have now been satisfied. It is admitted also that the plaintiff has erected a building on the land in question. The plaintiff contends that the defendant had undertaken to give him a lease for 51 years, that he did not owe the defendant any rent when the first suit in Small Cause Court was instituted against him in 1935, that in that suit it was wrongfully alleged that he was only a monthly tenant, and that the real object of the defendant in bringing that suit was to get rid of his promise to give the plaintiff a lease for 51 years and eventually to eject him. In this connexion, the plaintiff maintains that the defendant should have given him credit for a sum of Rupees 1400 which he had deposited with him on 15th January 1934. The deposit is admitted, and to explain how it was adjusted the defendant produced a document, Ex. 7, which purports to be a settlement of account dated 22nd February 1934. The defendant's case is that Ex. 7 shows how the plaintiff's liabilities absorbed that sum. The document should be set out in full for considerable cross-examination and a great deal of arguments have been directed to it.

A/c Champalal Jain No. 53.

CREDIT Rs. as. DEBIT Rs. as.

A/c No. 81, A/c No. 81,

Beadon Street, Beadon Street,

Deposited on salami depo-

account of sa- sited 222 0

lami (pre- Rent for 5

mium) 200 0 months from

Kartik 1340

A/c rent 120 0 B.S. up to

--------- Falgun @ 111 555 0

320 0 Year 1933-34

A/c sale of house Municipal

No. 1, Latu Taxes from

Babu Lane 1400 0 October to Deo. 44 0

--------- ---------

1720 0 821 0

No. 1, Latu

Less expenses 1360 6 Babu Lane

--------- 1340 B.S. from

359 10 Sraban to Paus 204 6

Less Cash 200 0 Municipal fee 200 0

--------- Brokerage ex-

Cash Balance 159 10 penses 30 0

Payment to

Dy. 15-11-40 (B.S.) officers 30 0

Champaran Jain ---------

Dy. 22-2-34. 464 6

A/c Rameswar

Tiwari 75 0

---------

1360 6

4. The discussion of this document has only an oblique bearing upon the issues raised which are as follows:

Issues : (1) Was there any verbal agreement for a lease on 31st March 1933 as alleged in para. 1 of the plaint? (2) Is evidence of such verbal agreement for a lease admissible in view of the letter signed by the defendant and dated 31st March 1933? (3) Is the plaintiff entitled to specific performance of the alleged contract? (4) Is the plaintiff entitled to damages as claimed in para. 10 of the plaint? (5) To what reliefs, if any, is the plaintiff entitled?

5. The question of whether the plaintiff is entitled to specific performance, or to damages or to any other relief, will rest in the last instance upon whether the alleged verbal agreement can prevail. But the discrediting of the settled account would advance the plaintiff's case in this way. It would support his claim for an account as asked for in para. 11 of the plaint. It would show that he was not in arrears with his rent, and by so doing would reveal that the Small Cause Court suit of 1935 was mala fide. Further, it would prove that the defendant and his witnesses were persons upon whose evidence no reliance should be placed. The plaintiff's version of Ex. 7 amounts to a repudiation of all the debit items other than the two items of Rs. 222 and Rs. 555. The items repudiated have been the subject of strong attack, and it is, therefore, necessary to set out what the defendant's case in regard to them is, and to examine the plaintiff's reasons for saying that they do not represent the true state of affairs. I should say here that Ex 7 was drafted by Tarapada Chatterjee, who is the defendant's sircar, and who kept the defendant's books of account. The first item disputed is the sum of Rs. 44, consisting of Municipal taxes from October to December 1934. The land of which the plaintiff had become the tenant was part of a larger plot at No. 81, Beadon Street, of which the defendant was the owner, and at the period October to December 1933 the plaintiff's holding was not separately assessed. On behalf of the defendant, it has been asserted that he paid the taxes in respect of the entire plot for this quarter, and I have no reason to disbelieve this. That the plaintiff is liable to pay municipal taxes, has not been seriously disputed, and I am satisfied that the sum of Rs. 44 correctly represents the extent of his liability for the taxes of that quarter.

6. This entry is followed by four others which relate to liabilities alleged to have been incurred by the plaintiff in respect of land at No. 1, Latu Babu Lane, and they arise according to the defendant in the following way : The defendant is the owner of other land at that address, and a person called Maheshi Lal Jain was recorded in his books as a tenant of a holding which comprised a portion of that land. Maheshi Lal was however, according to the defendant, only the benamidar of the plaintiff Champaran, who was the real tenant. The sum of Rs. 204-6-0 shown against the entry ' No. 1 Latu Babu Lane 1340 B. S. from Sraban to Pous, ' relates to arrears of rent for that period in respect of this holding. Ex. 26 (a) which is the account in the name of Moheshi Lal in the ' Thoka or Tenants ' book of the defendant, kept by his officer Tarapada Chatterji shows that this sum of Rs. 204-6-0 was in fact due and owing. But the plaintiff denies that he had anything to do with this holding, or that he was liable for rent in respect of it. The question is whether the real tenant was the plaintiff Champa-ran, or this man Maheshi Lal, and on this question I do not think there are sufficient reasons for disbelieving the evidence of the defendant and of his officer Tarapada. Their testimony finds support in the evidence of the witness Sushila Bala, who has deposed about a subsequent transaction in connexion with this land, and of one Sudhir Chatterjee who acted as a broker in connexion with that transaction. The version of that transaction which is advanced on behalf of the defendant is as follows:

Champaran decided to sell the structure which stood on this land, and Sushila Bala Dassi was anxious to invest some money in fousti property. The parties were brought together by the broker Sudhir Chatterjee. It was eventually settled that Sushila would pay an inclusive sum of Rs. 1400, which would cover the price of the structure, all moveables appertaining to it, the right to receive arrears of rent from tenants in the bustee, and would also embrace the landlord's mutation fee. On 16th January 1933, the plaintiff Sushila and Sudhir went to Tarapada Chatterjee and a sum of Rs. 1400 was paid by Sushila to the plaintiff, who handed it over to Tarapada, with the request that he should keep, it deposited in his safe for a few days. Sushila did not get a receipt, but admittedly she obtained mutation of her name in the landlord's books on 29 th January : see Exs. 25 (a) and 26 (a). On 16th January, she became the owner of the structure which Champaran was selling, and that she was recognized as the tenant of the land upon which that structure stood appears from Ex. 26 (a) which contains an entry showing that she paid Rs. 35-10-0 as rent for the month of Magh. It was not till 29th January that the payment of Rs. 1400 was entered in the cash book. That entry Ex. 25 (a) runs as follows:Thro' Sushila Bala Dassi sale proceeds on account of tiled hut standing in the name of Mahesi Lal Jain at No. 1, Lalu Babu Lane, kept in deposit.... Rs. 1400.

7. The mutation fee was to be Rs. 200 and credit for this amount was given in an entry in the cash book dated 27th February which is Ex. 25 (d). This entry shows also the crediting of Rs. 204-6-0 the rent from Sraban to Pous 1340 in respect of 1, Latu Babu Lane. The broker was paid Rs. 30, and this payment is entered under date 18th January in Ex. F. It is, therefore, abundantly clear that the items of Rs. 204-6-0 and Rs. 200 were entered in the defendant's books on 27th February 1934, and the item of Rs. 30 on the debit side of Ex. 7 under the head No. 1, Latu Babu Lane, as well as the credit entry of Rs. 1400, on the left hand side of that document are contained in earlier entries in those books. The explanation of these entries offered by Tarapada Chatterjee has been strenuously assailed.

8. As already stated, on behalf of the plaintiff it has been denied that he was the real tenant of the land which stood in the name of Mahesi Lal. It is also denied that he was the owner of this structure, or that he sold it to Sushila. The fact that the payment of Rs. 1400 was not entered in the cash book on 16th January, on which date according to Tarapada that payment was made and the fact that Sushila got no receipt for it, have been commented on. Mr, Bose, on behalf of the plaintiff, has argued that the evidence of Tarapada, Sushila and the broker Sudhir is discrepant and improbable, and it is not supported by contemporaneous entries in the defendant's books. He has also relied strongly on a document which purports to be a deed of conveyance of the structure in question by Maheshi Lal in favour of Sushila, in which Champaran signed as a witness. This document was not executed till 15th May 1934, and the consideration for the sale is expressed as Rs. 500. Ac. 'Cording to Mr. Bose, it proves that what really happened was that Maheahi Lal sold this tiled hut to Sushila for Rs. 500 on 15th May.

9. The explanation offered on behalf of the defendant is that though the conveyance was in contemplation at the time when the sale took place, as will be seen from the date on which the stamps on the document were purchased, its execution was postponed because Maheshi Lal was away. As regards the figure mentioned as the consideration, it is contended that this relates only to the structure, and does not include the other rights which passed with the sale e. g. the moveables, and the right to receive arrears of rent from the tenants in the bustee. As against this, Mr. Bose has pointed out that the entry Ex. 25 (a) refers to the sale proceeds of the tiled hut, and says nothing about moveables and other rights. I have given the most careful consideration to Mr. Bose's vigorous argument, but I do not think it is sufficient to justify me in rejecting the testimony of Tarapada, Sushila and the broker Sudhir as to the nature of the transaction and the way in which it was effected. The manner in which Sushila and Sudhir gave evidence was satisfactory, and the demeanour of Tarapada was that of a witness of truth, but I got the impression that 'he is a lazy man. In my opinion, the fact that some entries in the books are not so careful as they might be, as also the fact that some of them were not made on the exact date when the transactions which they evidence took place, were due to sheer indolence on his part. Upon the fullest consideration of the evidence and of the arguments addressed to me upon this question, I am constrained to hold that the plaintiff was the real tenant of the holding at No. 1 Latu Babu Lane and that Maheshi Lal, who, it is to be observed, has not been called as a witness, was a mere benamidar of Champaran. I am, therefore, unable to say that the sale of Sushila and the payment of Rs. 1400 did not take place on 16th January 1933, and in the manner described by the defendant's witnesses.

10. Two mote debit entries in Ex. 7 remain to be considered. One is 'payment to officers Rs. 30' and the other is 'o/c Ramerswar Tewari Rs. 75.' As regards the former item, it is stated that it relates to a remuneration which it is customary to pay to the landlord's officers for their labour and trouble when tenancies are granted, and that this payment is never entered in the books of account. As regards the latter item, the explanation offered on behalf of the defendant is as follows: The defendant obtained a decree for rent against one Hari Dasi Dassi who was the tenant of a holding at No. 1 Latu Babu Lane, and a tiled hut structure belonging to Hari Dasi was sold in execution of that decree, and was purchased by the defendant himself. Thereafter the plaintiff agreed to purchase it from the landlord for a sum of Rs. 240, and paid a deposit of Rs. 100. The transaction is evidenced by Ex. 18 (d), which is an entry in the cash book dated 27th February 1933, and which runs as follows:

Credited to No. 1 Latu Babu Lane Account Rs. 100 thro' Champaran Jain Be the house of Hari Dasi Dassi at No. 1 Latu Babu Lane, was bid for and purchased khas (for the estate) at an auction sale and settlement of the said house was made at Rs. 240 being the decretal amount with costs. Received this day towards the said amount Rs. 100.

11. Thereafter the plaintiff sold the structure to Rameswar Tewari, but remained liable to the landlord for the balance of Rs. 10, as also for a mutation fee of Rs. 40. Part of this liability was extinguished by a payment of Rs. 105 on 29th July 1933 which is entered in the cash book under that date. The entry which is Ex. 25 (e) is as follows:

Thro' Rameswar Tewari on account of hatchita for arrears of rent due from the tenant Hari Dasi Dassi taken from Champalal Rs. 105.

12. A sum of Rs. 75 was outstanding, and this is the last debt item on the right side of Ex. 7. With regard to this transaction, the plaintiff admits that he purchased the structure from the defendant, but he maintains that he sold it immediately to Rameswar Tewari, and that he was not liable for the mutation fee, or for any other payment. The entry in the Cash Book Ex. 18 (d) quoted above, makes it clear that the plaintiff was liable to pay the landlord Rs. 240, in respect of this transaction, and I see no reason to disbelieve Tarapada's statement; that the plaintiff guaranteed the payment of the mutation fee as well.

13. If follows, therefore, that the entries in the defendant's books of account are not the result of any conjuring, but are genuine entries which correctly represent what had happened before 22nd February 1934. That this must be so is manifested by the fact that the plaintiff signed Ex. 7. In examination-in-chief the plaintiff first attempted to deny his signature on this document, and though eventually he had to admit it, it was with obvious reluctance that he did so (see Qs. 63 to 67). He then proceeded to say that when he signed the document, the only writing which it contained were the credit entries on the left hand side of Rs. 200, Rs. 120 and Rs. 1400, and that all the other entries had been subsequently interpolated (see Qs. 531 to 557). An examination of the document itself convinces me that this is false. The plaintiff's signature appears not immediately below the entry of Rs. 1400, but at the very bottom of the document, and all the writing in it has the clear appearance of having been made at one and the same time. This fortifies me in the conclusion that the infirmities, such as they are in the entries in the defendant's books, were due to carelessness on the part of his servant Tarapada, and it makes it difficult for me to avoid the conclusion that the plaintiff is a thoroughly unreliable witness. That the plaintiff's repudiation of Ex. 7 is dishonest is supported by another circumstance. His Thoka Account which is Ex. 26 (c) shows that the plaintiff made the following payments:

On 4th Bysack (17th April 1934) Rs, 60; on 14th Bysack (27th April 1934) Rs. 15; on 29th Jaista (12th June 1934) Rs. 19-12-0; on 7th Bhadra (20th September 1934) Rs. 111.

14. If the plaintiffs' version of the state of his account as it stood on 22nd February were correct, it would have been quite unnecessary for him to make these payments, as the sum to his credit would have been more than ample to meet them. As the plaintiff stands thoroughly discredited, I must accept Tarapada's statement that out of the sum of Rs. 1400, the plaintiff subsequently withdrew Rs. 200 which is the entry shown as 'Less Cash' in the left-hand column of Ex. 7.

15. Before parting from the facts of this case, there is one other matter to which reference should be made. It is in evidence that at some time prior to that at which the plaintiff decided to become the tenant of the plot at No. 81 Beadon Street, there had been negotiations between the landlord and a woman called Budhia who was desirous of taking a settlement of that plot. It was suggested to her that she should build on the land in accordance with a certain plan, but she found it too expensive, and eventually did not enter into the tenancy at all. On behalf of the plaintiff it is contended that he was induced to build in accordance with the very plan which frightened Budhia away. Incidentally I should say that there is evidence to show that a plan originally submitted for the sanction of the Calcutta Corporation underwent subsequent modification, but this evidence is not very material. The point of importance in connexion with the building plans, is that their preparation and submission were the peculiar concern of another employee of the defendant, one Nagen, who has since died.

16. On behalf of the plaintiff, Mr. Bose has argued that the whole question of the plaintiff building on this land was the subject-matter of negotiation which Nagen alone was conducting on the defendant's behalf. He has invited me to draw from the aforesaid facts the inference that his client would never have consented to put up an expensive building of the kind which he eventually constructed but for the fact that this man Nagen, acting with the full authority of the defendant, had held out to the plaintiff an assurance of certain benefits, including security of tenure-which were not extended to other tenants of bustee land. This point will arise for consideration if at all after some other questions have been determined.

17. Mr. Bose has put the plaintiff's case in the following way : The document Ex. 8 contains only some of the terms of the contract of tenancy, and the plaintiff is entitled under proviso 2 of Section 92, Evidence Act to give evidence of a separate oral agreement containing other terms which were not reduced to writing. The evidence of the plaintiff that the defendant had agreed to give him a 51 years' lease should be believed. That agreement being established, either specific performance thereof should be granted by directing the defendant to execute a lease for 51 years or in the alternative the defendant should be ordered to pay appropriate damages. Mr. Bose has in this connexion contended that his client has not been guilty of any act or omission which would disentitle him to such relief, and that he has always been ready and willing to perform his part of the contract. More particularly I have been invited to hold that the plaintiff was not in default in respect of rent either in February 1935, when the first of the Small Cause Court suits was instituted, or in March 1935 when the present suit was filed. It is pointed out that at the date of the hearing of this action, all arrears had been paid up, and it is argued that any default in respect of rent instalments which the plaintiff may in the past have made, has been either waived or acquiesced in.

18. There is a second branch to Mr. Bose's elaborate argument, and it is this: If the plaintiff does not succeed in proving the agreement for a lease for 51 years, he is at any rate entitled to be protected against ejectment which is the real object the defendant is seeking to effect by means of the suit in the Small Cause Court, upon the principles discussed in Ramsden v. Dyson (1866) LR 1 HL 129, Cawdor v. Lewis (1835) 1 Y & C Ex 427 and Wilmot v. Barber (1880) 15 Ch D 96. Mr. Bose has contended that his client is entitled to protection, because on all the facts of this case, there is room for the inference that the plaintiff expended money in putting up this building in the belief that he would obtain a tenure of greater security than that of a monthly tenant, which belief was occasioned by the defendant, and by the defendant's other agent Nagen who is dead. It is doubtful whether the principle invoked would at all apply except as an estoppel arising upon a representation of fact within the meaning of Section 115, Evidence Act, but in any view of it I should say at once that no case of estoppel arises upon the pleadings. No word, act or omission of either the defendant or of Nagen has been pleaded, but only the alleged specific verbal agreement for a 51 years' lease made on or about 31st March 1933 between the plaintiff and the defendant, and the argument cannot be entertained without permitting the plaintiff to make an entirely new and inconsistent case founded upon an imputation of conduct, or upon the allegation of some other representation made by the defendant, or made by another person acting on the defendant's behalf and with his authority. It is by the alleged verbal agreement for a 51 years' lease that the plaintiff's case must stand or fall. Here I may say that Mr. Bose has cited the decision in Ariff v. Jadunath Majumdar , in aid of the proposition that his client's right to sue for specific performance of the agreement not being time-barred, he is entitled to ask at this stage for the execution of a 51 years' lease to protect him from the peril of ejectment, which the defendant is seeking to compass through the device of the suit in the Small Cause Court. In Ariff v. Jadunath Majumdar , however, there was in fact a verbal agreement to grant a lease, and the decision can assist the plaintiff only if the verbal agreement which he has set up can be proved.

19. The first question therefore to be determined is whether the document Ex. 8, along with which should be read Ex. 9, amounts to a contract within the meaning of Section 92, Evidence Act, and whether it creates a month to month tenancy. Both these documents speak of the fixing of a monthly rent, and the payment of a deposit of one month's rent in advance, and of the commencement of the tenancy. The terms of Ex. 8 are practically identical with the terms of Exs. 20, 21 and 24, which are documents granted by the defendant to the tenants of other holdings at No. 81, Beadon Street; and it is not disputed that those tenants are monthly tenants. There is another document Ex. 23 which is similar to these, except that it contains the expression monthly tenancy. Such facts however do not dispose of the question. If exhibits 8 and 9 do not between them express all the terms of the tenancy agreement into which the plaintiff was entering, the existence of a number of similar documents which have been understood by other persons to be tenancy agreements of a particular kind, is of little assistance.

20. It is apparent however that Exs. 8 and 9 are documents of little formality, and I am on the whole inclined to accede to Mr. Bose's contention that his client is entitled under proviso 2 to Section 92, of Evidence Act, to give evidence to establish a separate oral agreement to grant a 51 years' lease. See in this connexion' Cutts v. Brown (1881) 6 Cal 328 and Ambica Prosad Das v. J.C. Galstaun (1909) 13 CWN 326. The plaintiff's own testimony is the only evidence to establish this fact, but it is contended that his evidence is supported by probability. He has invested his entire fortune in the erection of a solid two-storeyed masonry structure, and this it is said, no man in his senses would do, except in the belief that he was getting a building lease. At first sight there appears to be considerable force in this argument, but it has to be carefully examined in the light of the proved and admitted facts. The plaintiff's dealings very strongly suggest that he is a speculator in bustee property. The defendant is the owner of land which has been let in a number of small plots at precisely the same rate of salami and rent, to people who have erected dwelling places thereon, each according to his own means and ability. Not a single one of these persons has been given anything more than a month to month tenancy. One of these tenants, Bidhu Mukhi, has been examined as a witness to prove that she, like the plaintiff, also erected a solid two-storeyed masonry structure upon her holding. She has stated that it cost her Rs. 4000.

21. It has been asserted, and this has not been denied, that the defendant has the reputation of being a landlord who never evicts his tenants. According to the plaintiff's witness N. C. Roy Chowdhury, who is an engineer, the cost of his building would be about Rs. 17,489, and the rents which he is receiving would be about Rs. 300 a month, which obviously represents a large return on his capital. The value of this land is Rs. 4000 to Rs. 5000 per cottah. The rent payable by the plaintiff is Rs. 111 per month for about 5 cottahs, and he has paid a salami in respect thereof of Rs. 222. It was argued by the learned standing counsel that a building lease for a period of 51 years would not be granted at so low a rate of salami and rent, and such a lease would in any event provide for progressive rent, yet the plaintiff says that the defendant made no such stipulation, and that the rent was never to be enhanced. The probabilities in favour of the defendant's case more than balance those which are relied upon in support of the plaintiff's evidence. The plaintiff has, as I have already stated, been guilty of deliberate falsehood in connexion with the settled account Ex. 7, but that is not the only false statement which he has made in this Court. In his written statement in the Small Cause Court suit the plaintiff pleaded a verbal agreement for a registered lease, but did not describe it as a lease for 51 years. When confronted with that fact he at first strenuously denied having filed a written statement at all. He even went to the length of denying knowledge of an averment regarding it contained in an affidavit affirmed by himself on 28th March 1935. Again, when asked with reference to Exs. 8 and 9, whether he had signed a document on 31st March, he resorted to evasion and circumlocution (See Qs. 259 to 278). In answer to Q. 279 he said:

About the payment of Rs. 100. They might have got two letters made out. On one letter I was made to sign and they retained that, and the other letter might have been given to me.

22. He was then shown Ex. 9 and was further questioned: (Qs. 285 to 296).

Look at this document (shown receipt)

It bears my signature.

Do you know what is in it?

I do not know that.

Did you sign it before you knew what it was?

I made a payment of Rs. 100 and I thought that it was a receipt in respect of that payment. That is what you thought?

Yes. Now will you produce your receipt?

Yes, I will produce it.

You see that document is stamped? Yes.

Did you understand what the stamp was there for? It was a receipt in respect of Rs. 100 and I knew that receipts in respect of Rs. 100 ought to bear a stamp.

But you were not receiving any money; you were paying money? I made a payment, and in respect of that this receipt was made out and I was made to sign.

If you paid money to Sripathy then Sripathy would grant a receipt to you; you would not sign any document? Sripathy Babu ordered that this amount had been received, and a receipt should be granted.

Granted to you, you mean? Yes.

But why did you sign the document? He said that in respect of this payment you would have to sign a like receipt.

What for? You are a man of business? I am a business man no doubt, but by erecting the house my everything has been ruined.

23. In my judgment it is extremely unlikely that the plaintiff would have signed Ex. 9 except with full knowledge of the contents of that document, as also of the contents of Ex. 8. There are other passages in the plaintiff's evidence which show that his testimony is throughout marked by equivocation and a lack of candour. I can place no reliance on his story that he was promised a lease for 51 years, and as this is the only evidence offered to prove it, I must hold that it has not been established. This being so, it is unnecessary to enter into any of the other questions raised in argument. But before concluding I might perhaps say that it follows from the findings of fact at which I have arrived, firstly that the plaintiff was not in any way misled either by the defendant or by his officer, Tarapada, and secondly that the plaintiff himself committed a breach of the conditions of his tenancy when he defaulted in making monthly payments of his rent. This disposes of all the issues raised. The suit must be dismissed with costs.


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