Jagdish Chandra Deo Dhabal Deb vs Biseswar Lal Agarwalla and Others

Agarwala, J.—This is an appeal by the plaintiff from concurrent decisions of the Courts below dismissing his suit for rent of revisional survey plots Nos. 1618, 1618/1953 and 1621 for the years 1842 to 1344.

The material facts are that this land falls within the Dalbhum estate of which the plaintiff is the present proprietor. In 1914, a Padhan of the estate granted a lease of certain land to one Gaya Prasad. In the following year Gaya Prasad settled plot No. 1618 with the father of the defendants by means of a registered patta and in 1925 the defendants'' father executed a kabuliyat in respect of plot No. 1618 in favour of the receiver who was then in possession of the Dalbhum estate.

In 1929, the plaintiff sued the defendants for possession of this plot alleging that neither the Padhan nor the receiver had any right to settle the land. The suit-was compromised on 23rd August 1930. It was agreed that the defendants should retain possession not only of plot No. 1618 but also of the other two plots whose numbers I have given above, on the terms mentioned in a kabuliyat executed by the defendants in favour of the plaintiff on 19th August 1930. This kabuliyat evidenced the grant of the land for a term of 20 years.

In 1931, the plaintiff sued Gaya Prasad to eject him from the land leased to him in 1914 including plot No. 1618. The suit was eventually dismissed by this Court on 15th July 1935, on the ground that it was barred by limitation. In the meanwhile, however, in Maroh 1934, and February 1935, the plaintiff had obtained rent decrees against the defendants on the basis of the kabuliyat of 1980. As a result of the decision of this Court dismissing the plaintiff''s suit, Gaya Prasad served a notice on the defendants calling upon them to take a fresh settlement of plot No. 1618 from him or to quit this plot.

In 1938, the defendants were recorded as tenants under Gaya Prasad in the record of rights. The present suit was instituted in 1937. The Courts below have held that the plaintiff is not entitled to the rent of plot No. 1618 as the defendants-had been evicted there from by title para, mount. As the kabuliyat of 1930 provided a consolidated rent for all the three plots-covered by, it the Courts below have not. allowed the plaintiff rent for the other two plots either.

The first question that falls for consideration is whether the defendants are estopped from denying the plaintiff''s title to plot No. 1618 by reason of the provisions of Section 116 Evidence Act. That section debars a tenant of immovable property, during the continuance of the tenancy, from denying that the landlord had title to the demised property at the beginning of the tenancy. If the tenancy is still continuing the estoppel must. operate provided that a valid tenancy was created in 1930. The first question to be considered therefore is whether the relationship of landlord and tenant alleged to exists between the plaintiff and the defendants has been terminated by eviction of the defendants by title paramount. The Courts-below have taken the view that in the circumstances that have happened, namely the dismissal of the plaintiff''s suit against. Gaya Prasad, the defendants have in law been evicted from plot No. 1618.

The Courts below have relied on the decision in Alaga Pillai Vs. Ramaswami Thevan and Others, , in which it was held that eviction, for the purpose which I am considering need not be by actual dispossession of the tenant; but if the true owner is-armed with a legal process for eviction, which cannot be lawfully resisted the threat, to put him out of possession amounts in. law to eviction even though the tenant is. not actually put out of possession. In that, case it is to be observed, however, that the true owner had armed himself with the necessary notice u/s 7, Madras Land-Encroachment Act, 1905, in the face of which-notice the tenant could not have lawfully resisted eviction. The case therefore cannot be relied upon for deciding the question, which arises in the present appeal.

The next case relied upon is Ram Chandra v. Pramotha Nath AIR 1922 Cal. 237, in which it was held that it is not necessary for the tenant actually to go out of possession foe the purpose of being evicted by title par;, amount, if, upon a claim being made by the-owner of the paramount title, the tenant, attorns to him or enters into another arrangement for holding Under him.

In the present case, the only evidence that the defendants attorned to Gaya Prasad or entered into any new arrangement for holding under him, subsequent to the compromise of 1980, is that the survey authorities have made an entry in the record of rights that the defendants are holding plot No. 1618 under Gaya Prasad.

It is, I think, arguable that the entry in the record, of rights raises a presumption that the defendants are holding under Gaya Prasad since the date of the entry in 1936. But as the defendants have" not averred that they have attorned to Gaya Prasad, or entered into any new arrangement with him since 1930, it may be considered doubtful whether the entry in the record of rights can be relied on for this purpose. I propose therefore to discuss the second question which arises in this case, namely, whether there has been a valid lease by the plaintiff to the defendants in consequence of the ''kabuliyat or compromise of 1980.

In view of the decision of this Court in Sachindra Mohan Ghose Vs. Ramjash Agarwalla, , it is quite clear that the kabuliyat of 19th August 1930 is not by itself sufficient to create a valid lease as there was no corresponding patta executed by the plaintiff.

It is contended on behalf of the plaintiff-appellant, however, that the compromise entered into by the parties in 1980 constitutes a valid lease and that by reason of the provisions of Section 17(2)(vi), Registration Act, this compromise did not require registration. I am unable to accept this contention. u/s 107, T.P. Act, a lease for a term of year can be created only by a written document. Section 17(l), Registration Act, requires that certain documents shall be registered. These documents are divided into five groups enumerated in Clause (a) to (e) of Section 17(l). Clause (d) refers to leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent. It is clear, there, fore, that a lease for 20 years requires registration. Sub-section (2) of Section 17, however, provides certain exceptions. Among those exceptions is that mentioned in Clause (vi) namely, any decree or order of a Court. The exceptions mentioned in Sub-section (2), however, apply only to the classes of documents mentioned in Clause (b) and (c) of Section 17(1) and do not apply to leases which are mentioned in Clasue (d) of Section 17(l).

If it is necessary to refer to any authority at all on this point it is sufficient to refer to Sachindra Mohan Ghose Vs. Ramjash Agarwalla, , where it was held that all decrees and orders are not excluded from compulsory registration by reason of the provisions of Section 17(2)(vi) but only those are excluded which partake of the character of documents mentioned in Clause (b) and ,(c) of Sub-section (1) and that, therefore, a decree embodying a compromise purporting to grant a lease within the meaning of Clause (d) of Sub-section (1) is not exempted from registration. Fazl Ali J, who delivered the judgment in that'' case referred to the attempts which had been made from time to time to bring leases created by compromise within Clause (vi) of Section 17(2) and observes:

It appears to me, therefore, that it is now too late to contend that a decree, even though it operates to create a lease, does not require registration u/s 17, Registration Act.

I must hold, therefore, that if the compromise of 1980 constituted a lease it is rendered inadmissible in evidence by Section 49, Registration Act, for the purpose of proving the lease Or creating any interest under it. It is contended, however, on behalf of the appellant, that even if this be so, the compromise operates as res judicata between the plaintiff and the defendants as to the relationship of landlord and tenant. Cases were referred to in which it has been held that although, in the case of a consent decree, nothing is decided by the Court so as to attract the provisions of Section 11, Civil P.C., yet such a decree operates as an estoppel to the same extent as a decision of the Court does in a contested litigation. This proposition is of course not disputed. It may be conceded that in the case of a consent decree the parties themselves decide the issues in dispute between them in the litigation in which that decree is made and that they are estopped from subsequently challenging the decision at which they arrived.

Applying that principle to the present case the position is that the question on which the parties were at issue in the suit of 1929 was whether the defendants in that suit were entitled to retain possession of plot No. 1618 by reason of the settlement of it with them by the Padhan in 1915 or by the receiver in 1925. As the defendants compromised that suit by accepting a fresh settlement from the plaintiff it may be safely assumed that they accepted the position that the settlements of 1915 and 1925 did not confer upon them any right to retain the land as against the plaintiff; but the question whether the compromise in which that suit ended constituted a valid lease in favour of the defendants was not and could not be the subject-matter of decision in the litigation of 1929 either by the Court or by the parties themselves. Much stress, however, was laid on the decision in Secy of State v. Ateendranath Das (36) 63 Cal. 550. The head-note in that case is as follows:

A decree passed by consent is as effective a bar to a subsequent suit as one passed on contest, not only with reference to the conclusions arrived at in the previous suit, but also with regard to every step in the process of reasoning on which the said conclusions are founded. By every step in the (process of reasoning is meant the findings on the essential facts on which the judgment or the ultimate conclusions are founded.

As I have already indicated the conclusion which must be taken to have been arrived at in the litigation of 1929 is that the defendants were not entitled to retain possession of plot No. 1618 by virtue of the settlements of 1915 and 1925. Neither the fcabuliyat of 1930 nor the compromise of that year can be described as a step in the (process of reasoning by which this conclusion was reached. In my view, therefore, the kabuliyat of 1930 did not constitute a valid lease in favour of the defendants, the compromise of the year is not admissible for the purpose of proving a lease to the defendants, and does not operate as res judicata on the question which arises in this litigation, namely whether the relationship of landlord and tenant exists between the plaintiff and the defendants.

The learned advocate for the plaintiff-appellant relies on the rent decrees of 1934 and 1935 as constituting res judicata on the relationship of landlord and tenants between the plaintiff and the defendants. He referred to the decisions in Hiranmoy Kumar v. Ramjan Ali AIR 1916 Cal. 357, Raj Kumar v. Alimuddin 17 C.W.N. 627 and Muhammad Gowhar Ali. V. Samiruddin Sheikh AIR 1914 Cal. 592. The effect of these decisions is that a decree in a suit for rent is conclusive between the parties, that the (relationship of landlord and tenant existed at the time that the decree was passed and that by reason of the presumption mentioned in Section 114(d), Evidence Act, it may be presumed that that relationship continued until it is shown by evidence that it discontinued. The presumption mentioned in Section 114(d) is a permissive presumption. A Court of fact cannot be compelled to raise the presumption mentioned in that section in favour of either party, and in the present case the Courts below have not raised the presumption in favour of the plaintiff. Furthermore, the entry in the record of rights of 1986 showing the defendants as tenants under Gaya Prasad is a piece of evidence pointing to the contrary conclusion.

I, therefore, hold that the rent decrees of 1934 and 1985 do not preclude the defendants from alleging that the relationship of landlord and tenants does not now exist between the plaintiff and themselves.

In the result my conclusion is that the suit has been rightly decided by the Courts below and the appeal must be dismissed with costs.