Ramdhani Singh and Others vs Kewal Mani Bibi and Others

Das, J.—On the facts found by the learned Additional District Judge he was right in passing the decree which he did pass. Two questions have been argued before us by Mr. Manuk on behalf of the defendants-appellants: first that the inclusion of 1 cottah of land in Patna city was a fraud on the registration law and that the registration obtained by its means was invalid; and secondly, that the enhancement of rent in the leases which were also the basis of the suits constituted an infringement of Section 29, Ben. Ten. Act, and cannot be supported by a Court of law.

I will first consider the point in regard to the registration. The written statement raises the following case: "In order only to get the registration made at Jhauganj, an imaginary plot of land in Mohalla Diwan in the city of Patna was included in the patta and kabuliyat. These defendants did not take in settlement the land in Mohalla Diwan in the city of Patna, nor was any contract made with regard to the settlement thereof, nor did the defendants ever get possession of the same. Hence the aforesaid kabuliyat is illegal, void and inoperative, and the same cannot be binding on the defendants. The plaintiff''s suit on the basis of patta and kabuliyat like this is not tenable and is fit to be dismissed at once." The Court of first instance found that the plot of land in Mohalla Diwan in the city of Patna did not exist and in this view he came to the conclusion that the inclusion of this property was a fraud on the registration law. The lower appellate Court has reversed the finding of fact of the Court of first instance on this point. The learned Judge says as follows; "I have examined the evidence on the point and the case law relating to the matter and am disposed to differ from the finding of the learned Munsif and to hold that the kabuliyats were valid, and were not fraudulent documents, and had been entered into with the knowledge and consent of both the parties and that the properties were real existing properties and not fictitious or non-existent. This appears to be clear from the depositions of the three consenting defendants themselves given before the Court below. The finding that the plot of land in Mohalla Diwan is "existing property and not fictitious or non-existent" is a finding of fact which is binding on us in second appeal.

This is not disputed by Mr. Manuk, but he contends that the learned Judge should have considered the other point raised by him, namely, whether there was any intention on the part of the parties to deal with the plot of land in Mohalla Diwan. Now in my opinion the question was not raised in this form in the written statement. The whole point made in the written statement is that "an imaginary plot of land in Mohalla Diwan in the city of Patna was included in the patta and kabuliyat. There is no suggestion that the parties did not intend to deal with this property on the assumption that it did exist. Mr. Manuk relies on the judgment of the Court of first instance and contends that that Court expressly found that the parties did cot intend to deal with this property; but I can find no support for this argument in the judgment of the learned Munsif. He no doubt refers to the contention on the part of the defendants that they never got possession of the Diwan Mohalla properties and that it was never intended that they should get possession of them and that these properties were included only to facilitate registration at Jhauganj. But the finding of the learned Munsif is that "these areas are only fictitious." That this was the only finding will appear from the cases to which he refers and discusses. In dealing with these cases, which were obviously cited on behalf of the plaintiffs, he says as follows: "In the first of these cases it transpired later that the executants'' interest had become extinguished in the property mortgaged, and without knowledge of this the parties entered into a bona fide mortgage of same. In the second case the existence of the property mortgaged was not denied. In the third it was actually found the mortgagor intended this small property should also be a security for the mortgage debt. Thus in none the question arose of the non-existence of the property," and he concludes as follows: "In the present case it is plainly alleged in the written statement the property in Diwan Mohalla was a fictitious one. The kabuliyats in the recitals in them make no mention of them, and hence it was incumbent on plaintiff to adduce some evidence of existence of those properties. In absence of such evidence the case is covered by the case of Herendra Lal Roy Chowdhuri v. Hari Dasi Debi AIR 1914 PC 67 and the registration of Jhauganj is invalid and plaintiff cannot take advantage of these kabuliyats."

It will appear from the judgment of the learned Munsif that the only question which he intended to try and did try was whether the properties alleged to be fictitious by the defendants did exist. He found that they did not exist and he held that the inclusion of those properties was a fraud on the registration law.

That being so how are we entitled now in second appeal to go into the question of the intention of the parties? It has been contended on behalf of the respondents that having regard to Section 92 of the Evidence Act the Court is not entitled to go into the question of intention.

I am unable to agree with this contention. The authorities establish that though evidence to vary the terms of an agreement in writing is not admissible, yet evidence to show that there is not an agreement at all is admissible. In Pym v. Campbell (1856) 6 El & Bl 370, Erle, J., said as follows: "The point made is that this is a written agreement, absolute on the face of it, and that evidence was admitted to show it was conditional, and if that had been so, it would have been wrong. But I am of opinion that the evidence showed that in fact there was never any agreement at all. The production of a paper purporting to be an agreement by a party, with his signature attached, affords a strong presumption that it is his written agreement, and, if in fact he did sign the paper animo contrahendi, ther terms contained in it are conclusive and cannot be varied by parol evidence; but in the present case the defence begins one step earlier: the parties met and expressly stated to each other that though for convenience they would then sign the memorandum of the terms yet they were not to sign it as an agreement until A was consulted. I grant the risk that such a defence may be set up without ground; and I agree that a jury should therefore always look on such a defence with suspicion; but, if it be proved that in fact the paper was signed with the express intention that it should not be an agreement the other party cannot fix it as an agreement upon those so signing. The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible." And Lord Campbell said: "I agree. No addition to, or variation from, the terms of a written contract can be made by parol; but in this case the defence was that there never was any agreement entered into." This case was followed in Guddalur Ruthna v. Kunnattur Arumuga 7 MHC 189. The last-man-mentioned case was decided without reference to the Indian Evidence Act and probably before the Evidence Act came into operation. But the principle of that case was affirmed by the Judicial Committee in a judgment delivered by it on the 5th of December 1924. So far as I know that case has not been reported; but the judgment has been pronounced in Privy Council Appeals Nos. 21, 31 and 32 of 1923 [Baijnath Singh v. Vally Mahomed Hajee Abba AIR 1925 PC 75.] In delivering the judgment of the Board Sir Lawrence Jenkins said as follows: "It is true, as was laid down in Balkishen Das v. Legge (1900) 22 All 149 that u/s 92 of the Indian Evidence Act, as between the parties to an instrument, oral evidence of intention is not admissible for the purpose, either of construing deeds or of proving the intention of the parties. But in the view their Lordships take of the circumstances of this case the section and the ruling have no application to it." The learned Judge then proceeded to say as follows: "The preamble to the Evidence Act recites that it is expedient to consolidate, define and amend the Law of Evidence" and Section 92 merely prescribes a rule of evidence; it does not fetter the Court''s power to arrive at the true meaning and effect of a transaction in the light of all the surrounding circumstances." I am of opinion therefore that it was open to the Court to examine the surrounding circumstances with a view to enable it to decide whether the parties intended to arrive at any agreement in regard to the Diwan Mohalla property; but in the view which I take of this case the question is a question of fact and should have been raised by the defendants specifically. It should certainly have been raised by them in the Courts below. The judgment of the learned Munsif is silent on this point and so is the judgment of the lower appellate Court. I must, therefore, hold that the only question which was raised by the defendants in the Courts below and the only question discussed by the Courts below is whether these properties were fictitious properties or not. That being so, it is not open to us to enter into the question whether the parties intended to enter into an agreement with regard to these lands.

The next question relates to the applicability of Section 29 of the Bengal Tenancy Act. Now, in order to understand the point, it ought to be pointed out that the registered kabuliyats were executed in 1322. By these kabuliyats the defendants took leases of the lands comprised in the kabuliyats from 1323 to 1329 at a rent of Rs. 5 per bigha. It appears, however, that the defendants were actually in possession of the properties comprised in the leases ever since 1301 and that they were paying a rent of Rs 3 per bigha. It is, therefore, contended on behalf of the defendants that there was an enhancement of rent by the fresh arrangement of 1322 and, that the rent was enhanced so as to exceed by more than 2 annas in the rupee the rent previously payable by the raiyat.

Section 29, it will be noticed, only applies to the case of an occupancy raiyat and before invoking the aid of Section 29, the tenant must prove that he is an occupancy raiyat in regard to the rent-claimed lands. Now these lands are admittedly diara lands and Section 180 provides that a raiyat who holds land of the kind known as char or diara shall not acquire a right of occupancy until he has held the land in question for 12 continuous years; and the section further provides that until he acquires a right of occupancy in the land, he shall be able to pay such rent for his holding as may be agreed on between him and his landlord.

On the admitted facts, therefore there is no room for the application of Section 29 of the Bengal Tenancy Act unless the defendants establish that they had held the lands in question for twelve continuous years. The learned Judge in the Court below accepted the contention of the plaintiffs that the defendants have not "been successful in proving continuous possession." Mr. Manuk in this Court contends that the learned Judge should have considered the evidence with a view to find out whether the defendants have been in continuous possession of any portion of the land comprised in the lease. He says that it may be that he has not been in continuous possession for 12 years of the entire block of land comprised in his lease; but he contends that it is possible that he may have been in possession for 12 continuous years of some portion of the land and that inasmuch as the learned Additional District Judge has not dealt with this point we should remand the case to him to enable him to decide the point. The cnus of establishing an exception u/s 180 of the Bengal Tenancy Act was upon the defendants, and it was for them to make a specific point in regard to the applicability of Section 29 in the written statement; but they have not made such a case in the written statement. No doubt the Courts examined the contentions in regard to the applicability of Section 29 but a new point is made before us, namely, that although the defendants may have failed to prove that they were in possession for 12 continuous years of the entire block of land, they may succeed in proving that they were in possession for 12 continuous year of some portion of the land. I find that the learned Munsif in the course of his judgment says: "The defendants themselves could not give verbally what area they were in possession of in which years." It is extremely unlikely that a remand would be productive of any good; for the defendants have no evidence on the point and the papers of the landlords could not possibly identify the lands which have been in the possession of the defendants, the lands being subject to inundation and there being no Record of Rights in regard to them. Having regard to all these facts and especially having regard to the fact that the defendants have not made out a case u/s 29, I must decline to remand the cases to the lower appellate Court to enable it to decide the point contended before us.

I must dismiss these appeals with coats.

Adami, J.

I agree.