Annamalai Chetty and Another vs Poosari Suppia Thevan

Tyabji, J.—An application is made to me to allow time to have the plaint translated and printed. I refuse the application. On the merit''s the

first point taken before me is that the District Munsif ''ought not to have considered the Commissioner''s report to be unsatisfactory. I think the

District Munsif was entitled to prefer the ''defendant''s evidence to the report of the Commissioner. I have, however looked at the Commissioner''s

report, which is printed by Mr. Rajah Aiyar and the evidence, given by the Commissioner in Court was read to me. The District Munsif was, in ray

opinion, justified in taking the view he did. It was next argued before me that the defendant ought to have been ordered to give some damages,

because he was in use and occupation of the land. The answer to it is that the suit may be considered in two ways, (1) as based on a breach of the

contract to cultivate the Land and (2) as for fair compensation for use and occuption of land.

As to the first aspect of the case, there is no contract that can be proved in the Court, the lease being unregistered.

With regard to the second head,, it seems to me there are two answers:

(a) that the defendant did not use or occupy the land;

(b) that the land was of so little value that the defendant was not bound to pay anything in respect of its use and occupation, assuming that he did

occupy it.

On the last point several cases were cited to me in support of the contention that an unregistered lease though it falls u/s 17(d) of the Registration

Act and it ought to have been registered may be looked at for the purpose of determining what would be fair rent for the use and occupation of the

land. In the case Amir Ali v. Aykup Ali Khan Saudagor 25 Ind. Cas. 509, however, the Court did not admit the lease in evidence, but admitted

other oral evidence with reference to the rent. In the case Sheo Karan Singh v. Maharaja Parbhu Narain. Singh 2 Ind. Cas. 211 : 6 A.L.J. 167,

the Court did apparently consider the kabuliyat for the purpose, but the kabuliyat was registered though void as a lease. As the parties had acted

upon the kabuliyat for some time, the payment of rent by the lessees would have been evidence showing what could be fair occupation rent. The

real point decided in the case was that occupation rent could be demanded, and not as to what would be fair occupation rent. It seems to me on

the other hand that the case in Narayanan Chetty v. Muthiah Servai 8 Ind. Cas. 520: 9 M.L.T. 142, is strong authority against the admissibility of

such a lease as is under consideration for the purpose of proving that the petitioners had agreed to a certain amount of rent for the property.

For these reasons, it seems to me that the suit was rightly dismissed and the petition is dismissed with costs.