Skip to content


Nazar Ali Vs. Indra Kumar Sutar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1929Cal462,118Ind.Cas.895
AppellantNazar Ali
Respondentindra Kumar Sutar and ors.
Cases ReferredChandra Kanta Nath v. Amjad Ali Haji A.I.R.
Excerpt:
- .....rely on the case of rajani kanta banerjee v. raj kumari dasi : air1927cal913 .4. the decree in the rent suit recites that the suit is decreed between the parties in accordance with the terms of the solenama. the material terms of the solenama were as follows : that the possession of the defendant in the lands would continue as before on the defendant paying a rent inclusive of cess, etc., of rs. 25 and odd ; that on the defendant giving the plaintiffs a goat at the time of the saradiya puja a deduction of rs. 2-8 would be allowed from the rent ; that the defendant would hold as under-raiyat under the raiyati of the plaintiffs ; that the defendant would continue to hold the land from generation to generation on payment of such rent ; that, in case of default damages would have to be paid.....
Judgment:

1. The plaintiffs alleging that they are raiyats and that the defendant holds under them as an under-raiyat sued the latter in ejectment on service of a notice to quit under Section 49, Ben. Ten. Act. The defendant denied the service of the notice and pleaded that the plaintiffs are not entitled to evict him. He rested his case upon a decree passed on the basis of a solenama in a previous suit for rent which the plaintiffs had instituted against him. By the solenama, the plaintiffs in consideration of an enhancement of rent,--his case being that the rent previously payable was Rs. 17 and it was enhanced to Rs. 25 and odd,--consented to allow him to hold this land permanently. The trial Court dismissed the suit, holding that service of the notice was not proved and that the plaintiffs are not entitled to ignore the solenama. The Subordinate Judge on appeal has reversed that decision and decreed the suit. The defendant has appealed to this Court. The Subordinate Judge has found for the plaintiffs on the question of service of the notice. This finding sets that matter at rest.

2. As regards the solenama and the decree, the Subordinate Judge has observed that a compromise decree is none the less a contract, and treating it as such he has held in substance that as in the solenama it was stated that the plaintiffs had raiyat right and the defendant darraiyati right, the lease that was created by the solenama came within the purview of the first of the three propositions laid down in the Pull Bench decision of this Court in the case of Chandra Kanta Nath v. Amjad Ali Haji A.I.R. 1921 Cal. 451.

3. It is contended on behalf of the appellant that the view taken by the Subordinate Judge was errroneous and he relies for this contention upon two decisions of this Court, one in the case of Jagadish Chandra Mukerji v. Rasik Mondal A.I.R. 1926 Cal. 666, and the other an unreported ease, viz., the decision in S.A. No. 506 of 1924, dated 21st April 1926. The respondents, on the other hand, rely on the case of Rajani Kanta Banerjee v. Raj Kumari Dasi : AIR1927Cal913 .

4. The decree in the rent suit recites that the suit is decreed between the parties in accordance with the terms of the solenama. The material terms of the solenama were as follows : That the possession of the defendant in the lands would continue as before on the defendant paying a rent inclusive of cess, etc., of Rs. 25 and odd ; that on the defendant giving the plaintiffs a goat at the time of the Saradiya Puja a deduction of Rs. 2-8 would be allowed from the rent ; that the defendant would hold as under-raiyat under the raiyati of the plaintiffs ; that the defendant would continue to hold the land from generation to generation on payment of such rent ; that, in case of default damages would have to be paid at four annas per rupee ; that no payment would be valid except on dakhilas, etc., etc. The defendant's case is that the rent that he used to pay before was Rs. 17 and a new rent was fixed by the solenama. It is not a term of the solenama that the defendant had the right to hold from generation to generation from before or that any such existing right was being admitted by it. It is, therefore, impossible to escape from the conclusion that the solenama created a new lease in respect of land which the defendant held from before. It would not be operative as a lease unless it was registered under Section 17, Sub-section (1), Clause (d), Registration Act, but Section 85, Clause (2), Ben Ten. Act bars its registration. The fact that this lease was embodied in a decree did not make it any the more operative as a lease because Section 17, Sub-section (2), Clause (6) excepts documents falling within Clauses (b) and (c) and not Clause (d) of Sub-section (1) of Section 17 : see Rajani Kanta Banerjee v. Raj Kumari Dasi : AIR1927Cal913 . The case also comes directly within the first of the propositions laid down by the Full Bench in the case of Chandra Kanta Nath v. Amjad Ali Haji A.I.R. 1921 Cal. 451 and there is no estoppel.

5. The two cases relied upon by the appellant appear to have overlooked the distinction that there is between a document coming under Clause (d) and one coming under Clause (b) or Clause (c), Sub-section (1), Section 17, when incorporated in a decree. The decree did not declare any rights, but merely superadded to the contract between the parties the command of a Judge, and it did not take the rights of the parties any further than the contract itself. In the said two cases something has been said as to the solenama having been used for proving an admission. In the solenama before us there was, as already stated, no admission of any existing right, but only a statement of the right that was being created by it.

6. We are of opinion that the view taken by the Subordinate Judge is correct and that this appeal, therefore, should be dismissed with costs.


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