(Shaikh) Ghulam Samdani vs Badar Khan

Macpherson, J.—The present litigation relates to khata No. 7, plot No. 89, of village Purandaha of which the plaintiff appellant is the raiyat and the defendant-respondent is the under raijat. In the Settlement khatian the rent was shown as manhunda. A rent suit of 1916 was however compromised on the basis that the defendant would pay the cash rent agreed upon and would not raise any objection under S. 48, Ben. Ten. Act, which lays down that the landlord of an under raiyat holding at a money rent shall not be entitled to recover rent exceeding the rent which he himself pays by more than 50 per cent when the rent payable by the under-raiyat under a registered lease of agreement or by more than 25 per cent in any other case. The rent agreed upon actually exceeded not only the 25 per cent, which was then applicable under the statute but the 50 per cent which would have been payable under a registered lease or agreement. There was a further stipulation of permanence of tenancy at that rent coupled with liability to abetment if an objection under S. 48 was taken by the under-raiyat. On 27th June 1910, patta and kabuliat were inter-changed which, however, made no reference to the stipulation. It was obviously to the interest of the landlord-raiyat to have a registered agreement, from which he would be entitled, upon application of S. 48 to 150 per cent, of his own rent against 125 per cent, if there was no registered agreement. In subsequent rent suits, however, the under-raiyat did take objection under S. 48 and it prevailed, whereupon the raiyat sued for abetment of the under-raiyat after service of notice under S. 49, it being stated apparently that the patta was for nine years.

The substantial defenses were that the defendant had acquired a right of occupancy by virtue of a local custom and that the plaintiff could not eject him by reason of the terms of the com-promise and the patta. The Munsif decreed the suit. Upon appeal the Additional District Judge found that the custom or usage alleged was established, and dismissed the suit on the ground that the defendant had an occupancy right thereunder. On second appeal to this Court however it appeared that the finding of the lower appellate Court was based on irrelevant evidence and the appeal was remanded for hearing according to law. The lower appellate Court again allowed the appeal and the plaintiff has again come in second appeal. The appellant''s case is that it was open to him to repudiate the contract evidenced by the patta and kabuliat by reason of the fact that the defendant did not abide by the stipulation in the petition of compromise. The defendant''s reply in the lower appellate Court was that the real contract was embodied in the patta.

In this Court the appellant has not furnished any copy of plaint, petition of compromise or patta, and The Court must, therefore, assume that the statements made by the lower appellate Court in regard to them are correct. That Court was unable to find what the terms of the compromise were and whether they were properly read and explained to the defendant. It held that the registered patta granted a permanent lease to the defendant and incidentally contained no stipulation of liability of the defendant to ejectment under any circumstances. The learned Munsif had made several mistakes of fact, the most prominent being that the plaintiff was an occupancy raiyat and the plaintiff''s pleader thereupon argued in appeal on reliance on that erroneous statement that the patta conferring a permanent tenancy was inadmissible to registration under S. 85 (2), Ben. Ten. Act The original plaint has been examined in Court, and the learned advocate for the appellant is unable to indicate any statement therein which would constitute a claim that the plaintiff was an occupancy raiyat. The lower appellate Court permitted the settlement khatian to be filed which disclosed that the plaintiff had been recorded not as an occupancy but as a sharahmuiyan raiyat. On this Mr. Hasan Jan complains that a new case was made after remand. But that was not so. The Munsif had been misled as to the status of the plaintiff. In executing the patta granting a permanent tenancy, the plaintiff had at least implied that he held a permanent tenancy entitling him to grant a tub-lease for more than nine years, and indeed it is reasonable to infer that before agreeing to register the patta the sub-registrar required the production of the Record-of-Rights or other evidence that the lessor had the right to transfer by sub-lease for more than nine years. The Munsif''s misapprehension that the plaintiff was an occupancy raiyat would of course lead to the conclusion that he could not under S. 85 (2), register a lease for a period exceeding mine years.

The lower appellate Court held that, irrespective of the custom or usage in the locality in respect of the acquisition of a right of occupancy by an under-raiyat on occupation for 12 years, the plaintiff had no right to eject the defendant because the patta confirmed a permanent tenancy and the plaintiff could as a sharahmuiyan raiyat validly execute such a patta. Mr. Hasan Jan contends, first, that the khatian should not have been admitted in evidence in appeal and alternatively that his client should have been allowed the opportunity of adducing rebutting evidence. In my opinion the khatian was properly admitted and in any case it would be most inexpedient for this Court in second appeal to interfere with the discretion in the matter of the lower appellate Court which required that evidence in order to enable it to pronounce judgment. Actually it is not clear why the appellant did not himself produce that document as ordinarily happens and this suppression or false suggestion must have misled the trial Court as to the entry as to his status. Moreover, though admission was objected to there was no claim to adduce rebutting evidence, and such an idea would never have occurred to the plaintiff or his advisers as sharahmuiyan right is so much more valuable than occupancy-right. The plaintiff-appellant has here no grievance. Indeed, as already indicated, the grant of the patta in 1916 implied that he was a sharahmuiyan raiyat.

Mr. Hasan Jan relies upon S. 85 (2), Ben. Ten. Act, which lays down that a sub-lease by the raiyat shall not be admitted to registration if it purports to create a term exceeding nine years. Now there is a euros curiae of the Calcutta High Court that this provision does not apply to a raiyat holding at a fixed rent or a fixed rate of rent, since it is controlled by S. 18 which in sub-Cl. (a) lays down that such a raiyat shall be subject to the same provisions with respect to the transfer of his holding as the holder of a permanent tenure, and a permanent tenure is under S. 11 capable of being transferred in the same manner and to the same extent as other immoveable property and in particular by lease. Mr. Hasan Jan questions the rulings in this regard of the Calcutta High Court from Hari Mohon Pal Vs. Atul Krishna Bose and Others onwards and urges that a sub-lease by a raiyat is not a transfer within the meaning of S. 18 and that in any case the special provision in S. 85 (2) overrides the general provision in S. 18. I am, however, not prepared to hold that a transfer under S. 18 does not include a lease and still less that the provisions of S. 85 were in tended to control S. 18 rather than be controlled by it. It is highly improbable that after acknowledging a raiyat''s complete right of transfer of his holding, the legislature should later qualify the right in respect of the length of the period for which that raiyat could grant a lease. Mr. Banerji for the respondent would rely upon the decision of a Full Bench of the Calcutta High Court in Chandra Kanta Nath v. Amjad Ali Haji, 1921 Cal 451 = 61 IC 466 = 48 Cal 783 = 25 CWN 4(FB). But though this decision is of some assistance to him, reliance must he placed primarily upon the curcus curiae to which I have referred, that view never having been questioned in this Court. Accordingly I agree with the Court below that the appellant having legally granted a permanent tenancy by the patta of 1916, he is not entitled to eject the defendant, even though the latter pleaded the provisions of S. 48 in order to avoid paying the rent stipulated in the patta. The appeal is dismissed with costs.