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Jarip Khan and anr. Vs. Durfa Bewa and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.476
AppellantJarip Khan and anr.
RespondentDurfa Bewa and ors.
Cases ReferredManik Borai v. Bani Charan Mondal
Excerpt:
bengal tenancy act(viii of 1885), section 85 clause (2) - sub-letting by raiyat--permanent lease--registration effected in contravention of law--effect of lease. - .....it, therefore, purports to create a term exceeding nine years. section 85 sub-section (2) of the bengal tenancy act provides that a sub-lease by a raiyat shall not be admitted to registration, if it purports to create a term exceeding nine years.' the duty, therefore, incumbent on the registrar, when such a document is presented to him. is not to admit it to registration. this duty is brought pointedly to the notice of the registrar by a rule of the registration department which prescribes that when a sub-lease executed by a raiyat purporting to create a term exceeding nine years is presented for registration, it shall be returned at once with a note to the following effect, recorded on its back, viz., not admissible under sub-section (2) section 85 of the bengal tenancy act (viii of.....
Judgment:

Lawrence Jenkins, C.J.

1. This appeal arises out of a suit whereby the plaintiff prays that his jote and darjote rights may be declared to the lands in suit and that a decree for khas possession may be passed in his favour.

2. The plaintiff in this case does not rest his claim on any prior possession that has been established, bub solely upon a document. That document is a sub-lease by a raiyat purporting to create a permanent tenancy. It, therefore, purports to create a term exceeding nine years. Section 85 Sub-section (2) of the Bengal Tenancy Act provides that a sub-lease by a raiyat shall not be admitted to registration, if it purports to create a term exceeding nine years.' The duty, therefore, incumbent on the Registrar, when such a document is presented to him. is not to admit it to registration. This duty is brought pointedly to the notice of the Registrar by a rule of the Registration Department which prescribes that when a sub-lease executed by a raiyat purporting to create a term exceeding nine years is presented for registration, it shall be returned at once with a note to the following effect, recorded on its back, viz., not admissible under Sub-section (2) Section 85 of the Bengal Tenancy Act (VIII of 1885). Therefore, when this document, on which the plaintiff rests his claim to succeed in this suit, was presented, there can be no doubt as to what should have been done. Had the law been obeyed, the document would not have been registered. If it has not been registered, then under Section 49 of the Registration Act, not only would it not affect any immoveable property comprised therein but it could not be received as evidence of any transaction affecting such property; so that for the purpose of this litigation, the document, if not registered, would have been as though it did not exist. Does it then make any difference that in contravention of the law it was registered? I think not. To hold any other view would mean this that if the Registrar could be deceived or induced into a breach of his duty, rights would be treated which would otherwise not exist, and that cannot have been for purpose of the Legislature. Therefore, it appears to me that this document, though purporting to be registered in breach of Section 85 of the Bengal Tenancy Act, in fact, must be treated as though it was not registered, for it was a registration in contravention of law. The result then is that we have no proof of this document, and as a consequence no proof of the title on which the plaintiff rests. More than that, as I have already pointed out, the plaintiff cannot fall back on any prior possession as tenant or otherwise, so as to attract in his favour that class of decisions of which the one Lala Surabh Narain v. Catherine Sophia 1 C.W.N. 248 is a type. Nor do I think that we can accept other evidence of this grant without contravening the provisions of Section 91 of the Evidence Act, and, in fact, I do not understand that there has been in this case any evidence of the grant tendered other than the document which was improperly registered.

3. It has been brought to our notice that there are a number of cases in which the provisions of Section 85 have come under consideration: but in none has this particular point been the actual basis of a decision. In this case, we have had the advantage of clear and pointed arguments and they appear to me to out-weigh the dicta brought to out notice. There is one case which calls for particular notice, the case of Manik Borai v. Bani Charan Mondal 10 Ind. Cas. 469 : 13 C.L.J. 649, which at the first blush presents some resemblance to the present, but its actual circumstances did not call for or elicit a decision on the precise point with which we are concerned. We have examined the record, and find that what was actually decided is to be found at page 653, where the Court pronounced its final conclusion in these words: 'We must, therefore, hold that in the case before us, the suit ought not to have been dismissed on the ground that the plaintiff had acquired no valid title to the property because even though the instrument under which he claims be inoperative under Section 85 of the Bengal Tenancy Act, he had a subsisting interest when the action was commenced.' Had it there been actually decided that Section 85 Clause (2) had the limited operation for which the appellant contends before us, we should, of course, have followed that decision. But our view rests upon this, that whatever may have been the intention of the Legislature, it saw fit to carry out the particular purposes indicated in Sub-section (2) by a provision which must of necessity have been of universal application. In forbidding registration, it forbade for all purposes the production of that document as evidence, and withheld from it any ability to affect immoveable property.

4. The only other point which has been urged before us is that the Court of appeal below has erred in holding that the recognition of the plaintiff by the superior landlord as a tenant was of no avail to him. That is a matter on which both Courts are against the present plaintiff-appellant, and, in my opinion, rightly so. On the facts, I think the learned Judge of the lower Appellate Court decided rightly when he said that the fact that the plaintiff was recognized by the superior landlord as a tenant was of no avail to him.

5. The result, then, is that, in my opinion, the decree of the lower Appellate Court must be confirmed with costs.

N. Chatterjea, J.

6. I agree.


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