C.G. MacDonald and Others vs Teknarain Rai and Others

Dawson Miller, C.J.—This is an appeal on behalf of the defendants in the suit against a decision of the District Judge of Darbhanga, dated the 22nd December, 1920.

The suit was instituted by the plaintiffs as proprietors of certain mauzas which had been held in lease for a term of years by the defendants who carried on the business of indigo manufacture upon the leased property to recover back 43 bighas odd of land which had been in possession of the defendants as ticcadars under their lease. In the appeal before us the dispute only concerns an area of something over 20 bighas of land.

The case put forward by the defendants is that, although they held the land now in dispute under the ticca lease which expired in the year 1918, they had in fact acquired an occupancy right in that land before the lease began in the year 1901. The plaintiffs, on the other hand, relied upon a decree passed in Suit No. 37 of 1900 in which the very question was in issue as to whether the defendants had any kashtkari right in the land now in dispute and that suit, they say, was determined after compromise and by the decree it was found, as admitted in the compromise, that the defendants had no claim to kashtkari rights in the land.

The decree arrived at after compromise in that suit and the ticca lease granted in 1901 were practically parts of the same arrangements which was then come to. The lease is dated the 29th May, 1901 and no doubt before that lease was granted the terms of the compromise of the suit then pending had been arranged between the parties in the suit, the decree in the suit being dated the 5th June, 1901. We have not had the lease placed in evidence before us but it is not disputed that by the terms of the lease the defendants, undertook at the end of their term that is to say, in the year 1918, to deliver up possession of all the lands leased. By the terms of the compromise decree they gave up their claim to any kashtkari right they might have had, or which they might have been able to establish in the lands now in dispute and the question which we have to determine in this appeal is, whether that decree must be taken as binding upon the parties to day or whether the compromise which was the basis of the decree is bad as being in contravention of the provisions of Section 178 of the Bengal Tenancy Act. That section provides that:

Nothing in any contract between a landlord and a tenant made before or after the passing of this Act shall take away an occupancy right in existence at the date of the contract.

It is contended that at the date of the compromise the defendants had in fact acquired an occupancy right in the land in suit and, therefore, even if they had agreed to give up that occupancy right and take a fresh lease which covered not only the land in suit but also the whole village in which the land was situated as well as other villages, nevertheless that being an agreement taking away an occupancy right in existence it was not valid by reason of Section 178 of the Bengal Tenancy Act and, therefore, could not be given effect to now.

In so far as the ticca lease itself is concerned, I quite agree that any contract contained therein to give up an existing right of occupancy would not be binding upon the holder of the occupancy right, but very different considerations arise when one is dealing with the effect of a compromise ''arrived at in a suit the subject-matter of which is the very right to an occupancy holding at all. The compromise, or rather the effective part of it, is in these words:

In the above case it has been agreed and settled between your petitioners, the plaintiffs and the defendants, that a decree be passed in favour of your petitioners, the plaintiffs, in respect of the land in suit.

Then follow some terms acknowledging the receipt of mesne profits and then come these important words:

That your petitioners, the defendants have given up their claim to the kashtkari right in the lands decreed.

Then follow certain terms as to granting a lease for 19 years of certain mauzas including that in which the lands in dispute in that action were situated. It is contended on behalf of the defendants that the real meaning of that clause which I have just referred to in the compromise was that the defendants gave up a right which they already had in the lands in suit, that is to say, that they gave up their kashtkari right and in return therefore they took a lease for 17 years of those lands and others on certain terms. If it can be made out that the compromise between the parties recognised the rights of the defendants as Kashtkaridara at that time and that the defendants undertook to give up that right in exchange for a lease of a different sort then, I think, the defendants in that case would be entitled to succeed because such an agreement would, to my mind, be in direct conflict with the provisions of Section 178 of the Bengal Tenancy Act, but I cannot read the compromise in that way.

It must be remembered that one of the questions, if not the main question in the suit, which resulted in that compromise was, whether the plaintiffs in that suit were entitled to khas possession of the lands or whether the defendants had kashtkari rights in them, and that dispute was settled by the defendants giving up their claim to kashtkari rights; that is to say the defendants acknowledged that they had no claim at all to the kashtkari right.

In other words, they submitted to a decree on behalf of the plaintiffs for possession on the ground that their kashtkari rights had not been established. The decree itself was passed in the terms of the compromise and I think it must be accepted that the dispute between the parties in that suit was determined by declaring in effect that the plaintiffs were entitled to recover possession of the land and that the defendants had no kashtkari right in it. This, to my mind, leads to an entirely different result from that which would have followed had the defendants in that suit agreed not to give up their claim to the kashtkari right but had agreed to abandon or to give up a kashtkari right which was admittedly in existence at that time. It is said that, if it can be shown at the present day that they had in fact such a kashtkari right when the compromise was entered into, then the compromise is one which was in contravention of Section 178 because it in fact give up a right to which the defendants were entitled.

In my opinion, it is not open to the defendants now to question the validity of the decree which was arrived at that time. The question in dispute at that time was clearly whether such a right existed or whether it did not and there was undoubtedly a bona fide dispute between the parties as to the existence of such a right and if by compromise the parties agreed that such a right did not exist and that the agreement is enforced by the decree then it is not open any longer to either of the parties to question the finding or validity of that decree.

In the view I take of this case, it is unnecessary to consider whether what was done upon the occasion of the compromise was a surrender within Section 86 of the Bengal Tenancy Act because whether it was a surrender or whether it was a settlement of a bona fide dispute as to the existence of the right in question in either case it would be equally binding upon the defendants. In my opinion this appeal fails and should be dismissed with costs.

Kulwant Sahay, J.

I agree.