Jageshur Singh and Others vs Alakh Narain Singh and Others

Agarwala, J.—This second appeal is by defendants 1 to 3. The facts were as follows: In 1913, Khuban and others executed in favour of the landlords, defendants 11 and 12, a document which has been called a zarpeshgi kabuliyat, evidencing the advance of Rs. 145-8-0 as peshgi. The executants agreed to pay rent of Rs. 30-12-0 for the term of the lease which was for three years. In 1916 Khuban who was a settled raiyat of the village was recorded as an occupancy raiyat in respect of the demised lands. In 1917 another document, called an ijara deed, was executed by defendant 11 in favour of Khuban and others with regard to 3 bighas of land and evidencing an advance of Rs. 200 as peshgi. The term of the ijara was for five years.

Three years later, Basdeo Narayan, defendant 11, executed a zarpeshgi with regard to 3 bighas of land in favour of defendants 3 and 4 and in 1922 he executed an ijara with regard to 12 bighas in favour of defendants 1 and 2. Khuban and others sold their interest to the plaintiff in 1913 in respect of plot No. 208 and a part of plot No. 87. Shortly afterwards, the plaintiff sold part of plot No. 208 to the sister of defendant 11 and about the same time defendants 11 and 12 sold their milkiat interest in the property to Madho Singh, the cousin of the plaintiff. The plaintiff then purchased a further 10 bighas from Khuban. In 1924, defendants 1 to 4 sued to recover possession of the properties covered by the zarpeshgi of 1920 and the ijara of 1922. In execution of the decree obtained in that suit, defendants 1 to 3 (the appellants) purchased the property and obtained delivery of possession. The plaintiff applied to be restored to possession of the property but his application was dismissed. He thereupon instituted a suit out of which this appeal has arisen.

The decision of the appeal depends upon a construction of the zarpeshgi lease of 1913. If this was a lease for cultivating purposes then, as Khuban was a settled raiyat of the village, he obtained occupancy rights in the lands in suit. If, on the other hand, it was a transaction in the nature of a mortgage, then he did not obtain occupancy rights in the suit lands. The material portion of the zarpeshgi lease of 1913 is as follows:

As we, the executants, who are cultivators, have no sufficient kasht for our maintenance in the mauza...it is necessary for and incumbent upon us to take settlement of further kasht land for cultivation. We therefore approached Babu Basdeo Narayan Lal requesting him to give us kasht lands on nakdi system for cultivation for a definite period.... He granted our request and became ready to settle the kasht land with us on nakdi system, for a definite period to take zarpeshgi from us and to get a kabuliyat executed for a period of three years, we have therefore...taken settlement of the whole and entire 29 bighas 5 kathas of kasht land...on payment of Rs. 145-8-0 as peshgi money, at a rental of Rs. 6 per bigha for a term of three years, from the beginning of the agricultural year, 1321 Fasli.

At the end of the document in tabular form is drawn up a statement of the area, the rate of rent, the total jama and the net jama after a deduction of interest on the peshgi money. In Bengl Indigo Co. v. Roghobur Das (1897) 24 Cal. 272 the Privy Council held that a zarpeshgi lease is not a mere contract for the cultivation of the land at a rent, but is a security to the tenant for his money advanced and that the possession of a tenant in such a case is at least in part that of a creditor operating payment to himself, and is no foundation for a claim for occupancy rights. Similarly in Kharag Narayan v. Dwarka Prasad Singh AIR (1924) Pat. 580 a Division Bench of this Court held that:

A person who enters into possession of land under a zarpeshgi lease, the preliminary object of the lease not being to create the relationship of landlord and tenant but to provide a security as between debtor and creditor, cannot acquire occupancy rights in the land during the period of the lease.

The contention on behalf of the appellants is that the provision in the document under consideration for the payment of interest is inconsistent with the relationship of landlord and tenant. Looking at the document as a whole, it appears to me that the primary object of it was to demise the land for cultivating purposes and the advance of Rs. 145-8-0 was not by way of a loan but by way of a premium. The recitals indicate clearly that the object of the executants Khuban and others in taking settlement of the land was not for the purpose of securing the repayment of the advance but to acquire more kasht land in the village because the lands which they had were insufficient for their maintenance. The document does not-state that the lands were pledged as security for repayment of he advance and there is no provision for repayment of the debt. In that respect the case differs from that in Dildar Hussain v. Sadding Sheikh AIR (1938) Pat. 35 In that case it was held that where a grantor of a zarpeshgi deed borrowed money and where the substance of the transaction was that after deduction of various sums by the grantee against the interest for the money advanced by him, a sum was reserved as rent payable by the grantee to the grantor, and the latter had a right to redeem before the expiration of the period provided by the document, the transaction was a mortgage in spite of the reservation of a certain sum as an actual jama. The terms of the document of 1913 may be compared with the ijara deed of 1917. The material portions of the recitals were as follows:

As I am in urgent need of money....I have therefore...let out in ijara lease for a term of five years the whole and entire 1.87 acres of milkiat...to Khuban Mahto...on receipt of Rs. 200 of Imperial Currency as peshgi money....On the expiry of the term in 1329 Fasli, I shall, on payment of the entire peshgi money in one lump sum, bring the leasehold property in my direct possession.

Now this document was clearly a mortgage. To secure an advance of Rs. 200, the land is pledged as security for payment of the debt and there is provision for redemption. It was argued that the fact that Khuban Mahto entered into this transaction in 1917 evidences that he did not look upon himself as an occupancy raiyat in respect of the land that was the subject-matter of the lease of 1913. Against that "however is the fact that after the expiry of the ijara in 1917, the landlords realized rent, thereby indicated that Khuban Mahto was a tenant. Now if the ijara lease of 1913 was, as I hold, a cultivating lease, Khuban Mahto became an occupancy raiyat in respect of the disputed land and the subsequent acceptance of the ijara of 1917 could not have the effect of depriving him of his occupancy rights.

There was therefore evidence on which the conclusion of the Court below could be arrived at and this second appeal fails and is dismissed with costs.