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Secretary of State for India in Council Vs. Sibaprosad Jana - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.983
AppellantSecretary of State for India in Council
RespondentSibaprosad Jana
Cases ReferredSecretary of State v. Forbes
Excerpt:
lease, construction of - covenant for renewal--admission of pleader on point of law, whether binding on party. - .....for renewal in the new lease.the subordinate judge has held that the plaintiff is entitled to obtain a lease for a period of 22 years from the date of execution of the document, containing all the terms, of the lease of the 5th august 1878, with the exception of the covenant for renewal. the defendant has appealed to this court.3. in support of the appeal, the governmen pleader has urged that the plaintiff is not entitled as a matter of right to a re-settlement. notwithstanding the fact that the right of the plaintiff to obtain a fresh lease was conceded in the court below, it is unquestionably competent to the government pleader to take up this line of argument, because as ruled by the judicial com-mittee in jotendromohun tagore v. ganendro mohun tagore 9 b.l.r. 377; i.a. sup. vol.....
Judgment:

1. This is an appeal by the Secretary of State for India in Council from the decree in a suit instituted by the respondent to obtain a lease from Government in respect of the lands described in the schedule to the plaint. The facts material for the investigation of the rights of the parties are not in dispute at this stage. On the 5th August 1878 a settlement was made with one Radhika Prasatma Chandra (the predecessor of the plaintiff) for a term of 22 years on a progressive rate of rent from 1285 to 1306.The kdbuliyat executed by the grantee contained a covenant to the following effect:

If I agree to the enhanced rent to be fixed at the time of the next Settlement in future, the Government shall have the power to settle the lands with me, or if I do not agree, then with others.

2. When the term of the lease expired in the year 1900, the Settlement operations were still in progress, and annual leases, renewed from year to year, were granted to the successor-in-interest of the original lessee. The last of these annual leases was executed on the 18th January 1909, and was to remain in force from the 1st April 1909 to the 31st March 1910. The Settlement operations were concluded during the course of the year just mentioned, though the Record of Rights was not finally published till the 30th June 1910. The plaintiff there upon unsuccessfully endeavoured to obtain a re settlement on the same terms as were embodied in the initial lease of the 5th August 1873 except as to the amount of rent payable; the result was that the plaintiff instituted this suit on the 1st March 1913. In the Court below, it was not seriously denied that the plaintiff was entitled to a re-settlement; the controversy really centred round the terms on which the re settlement should be made, specially whether there should or should not be a covenant for renewal in the new lease.The Subordinate Judge has held that the plaintiff is entitled to obtain a lease for a period of 22 years from the date of execution of the document, containing all the terms, of the lease of the 5th August 1878, with the exception of the covenant for renewal. The defendant has appealed to this Court.

3. In support of the appeal, the Governmen Pleader has urged that the plaintiff is not entitled as a matter of right to a re-settlement. Notwithstanding the fact that the right of the plaintiff to obtain a fresh lease was conceded in the Court below, it is unquestionably competent to the Government Pleader to take up this line of argument, because as ruled by the Judicial Com-mittee in Jotendromohun Tagore v. Ganendro mohun TAgore 9 B.L.R. 377; I.A. Sup. Vol 47 : 18 W.R. 359 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 and Beni Pershad Koeri v. Dudhnath Roy 27 C. 156 at p. 163 : 26 I.A. 216 : 4 C.W. N 274 7 Sar. P.C.J. 580, 14 Ind. Dec. (N.S.) 103, an erroneous admission by a Counsel on a point of law is of no effect and does not preclude the party from claiming his legal rights in the Appellate Court. [Holms v. Johnston (1873) 12 Heisk (59 Tenn) 155, Mitchell v. Cotten (1850) 3 Fla. 134, Urquhart v. Butterfield (1888) 37 Ch. D.357 : 57 L.J. Ch. 521 : 57 L. T 780 : 36 W.R. 376, Abdulullah Sarkar v. Asraf Ali Mandal 7 C. L 3. 152 at p. 163 and Ramsaran Singh v. Khakhan Singh 11 C.W.N. 340]. We must consequently consider, whether the plaintiff is entitled to obtain a lease from the Government in respect of the disputed lands. We are of opinion that this question should be answered in the affirmative. In the first place, it is plain that the clause in the lease set out above is in essence a covenant for renewal. It would be meaningless to hold that it was intended merely to confer an authority upon the Government to grant a fresh lease. In the absence of such a clause, the grantor would have been at liberty, on the expiry of the lease, to make a fresh settlement at his choice subject to the provisions of Regulation VII of 1822. The obvious intention was that if the grantee was willing to take a fresh lease at the enhanced rent, he should be entitled to do so. This view is in accord with that adopted in the case of Secretary of State v. Forbes 17 Ind. Cas. 180 : 16 C.L.J. 217 and Lani Mia v. Muhammad Easin Mia 33 nd. Cas. 418 : 20 C.W.N. 948. Consequently, when the term of the first lease expired in 1900, the lessee was in a position to enforce the covenant for renewal. The fact that the lease was not renewed at that time may, in the absence of an explanation, raise a presumption that the lessee abandoned his right in this respect. But the undisputed circumstances of the case leave no room for doubt that the lease was not renewed at that time because the Settlement operations had not been concluded and the amount of the enhanced rent could not accordingly be determined. The lease was thus renewed from year to year at the original, rate of rent, and this continued up to the time of the completion of the Settlement proceedings. We can see no escape from the position that at that stage the lessee became entitled to obtain a renewal of the lease on the same terms as were contained in the original lease, except as to the amount of rent and the covenant for renewal, as explained in the case of Secretary of State v. Forbes 17 Ind. Cas. 180 : 16 C.L.J. 217. His right in this respect was in force at the date of the institution of the suit and the decree must be made accordingly. The Subordinate Judge, however, has made a decree for a lease for 22 years from the date of the execution of the lease. On a true interpretation of the original lease we are of opinion that that lease was essentially for the term of the rent then fixed in the Settlement proceedings. The intention plainly was that the lease should continue so long as the rent was not altered by a Survey and Settlement proceeding, and this happened to be a period of 22 years. Much confusion will obviously result if a lease is now granted for 22 years at the rent fixed at the last Settlement and a new rent roll is prepared during the currency of the lease. The decree of the Subordinate Judge must accordingly be modified by the substitution of the words for the period extending from the 1st April 1910 till the completion of the next periodical Settlement and at the rent assessed at the last Settlement, minus a profit of 20 per cent, and in place of the words 'for a period of 22 years from the date of the execution of the patta by ithe defendant in favour of the plaintiff,' and further by omitting the words 'for a term of 22 years.' As the appeal has succeeded only in part, there will be no order for costs in this Court. A self contained decree will be drawn up in this Court.


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