Sriniwas Hukum Singh vs Rajkishore Sahay

Rowland, J.—In this appeal by the plaintiff the question is whether he can eject the defendant from 7 cottahs in plots Nos. 422 and 423 in village Saldega of which defendant No. 1 was permitted to take possession in the expectation of the grant of a permanent lease. The defence was that there was an agreement capable of being enforced for the grant of a permanent lease and the defendant having been admitted in pursuance of that agreement, plaintiff cannot eject him. The Munsif decreed the suit; but oh appeal the Subordinate Judge has dismissed it following the decision of the Calcutta High Court in G.H.C. Ariff Vs. Jadu Nath Majumdar, . In appeal it is pointed out that the above decision of the Calcutta High Court was carried on in appeal to the Privy Council where it was reversed in AIR 1931 79 (Privy Council) . It is contended that there was not any agreement between the parties which defendant No. 1 at the time of suit was entitled to enforce, the plaintiff having fulfilled his part of the agreement by tendering a kabuliyat to defendant No. 1 for execution which defendant No. 1 refused to execute. Defendant''s case was that the lease tendered to him contained a condition which he was entitled to repudiate, namely, an undertaking not to transfer or sublet the land without the consent of the landlord and on every such transfer to pay a fee to the landlord. In dealing with this part of the case, I shall have to refer to the correspondence because the Subordinate Judge in his judgment has given wrong dates of several of the letters and petitions referred to.

The estate of the plaintiff was under management of the Wards and Encumbered Estates Department. Negotiations began by an application, Ex-A, from defendant No. 1 to the Manager, Wards and Encumbered Estates of Ranchi, for the grant in permanency of one bigha of land in Simdega for holding a shop for the convenience of Government Officials. The application is dated April 22, 1921. The applicant was aware that it was not the practice of the estate to grant permanent leases; but he asked for this to be done as a special case. It was recommended by the Sub-Divisional Officer. Defendant No. 1 on May 16, 1921, made a fresh application Ex. A(1) to the General Manager asking for a grant of 7 cotthas in plot No. 422 or plot No. 423 in Saldega which is an adjoining village to Simdega. Oil October 20, 1924, the General Manager addressed the Deputy Commissioner in his letter, Ex. 1, for sanction of a permanent lease of seven cotthas in Saldega for a building to open a shop for the convenience of Government Officers in the Sub-Division. The rent proposed was eight annas a year and he suggested that a premium at the rate of Rs. 400 per acre be taken. On October 30, 1924 by Ex. B, the Commissioner gave his sanction to the permanent lease of a plot of land in Saldega of which defendant No. 1 was informed by the Manager by letter, Ex. C, dated November 19, 1924. He asked the defendant to deposit Rs. 50 on account of nazarana and Rs. 16 as fee of the Government Pleader for preparing the draft lease and for other expenses by December 7, 1921. Defendant No. 1 did not make the deposit within the time. On July 11, 1925, he made an application, Ex. 2, to the Sub-Divisional Officer expressing his wish to get the lease and asking for a reduction in the demand of Rs. 16 as Government-Pleader''s fee on the ground of poverty. He also asked the manager to get the land measured so that he might know how much he would have to pay. He expressed his willingness to deposit the amount after measurement and stated:

I am ready to execute any bond, but I am too poor to pay for a draft. The General Manager be kindly requested to send me copy of any lease for similar settlements, which I hope must be forth coming in his office, and I will very gladly register it in the local registry office.

This letter is a clear assent on the part of the defendant to take the lease on such terms as are ordinarily made, in such settlements. On July 31, 1925, the manager wrote to the Sub-Divisional Officer, Ex. 1(a), to inform the defendant that a grant of seven cotthas has been sanctioned and that Rs. 50 should be paid as a deposit and Rs. 16 as Government Pleader''s fee for a draft, no old lease being available as a specimen. There followed, it would seem, some haggling as a result of which the amount demanded for preparing the draft was reduced to Rs, 8 and the sums of Rs. 50 and Rs. 8 were deposited by chalans Exs. E and E(l) dated November 4, 1925. On November 5, 1925, the Sub-Divisional Officer by letter Ex. D informed the Deputy Commissioner of the making of these deposits and asked that the manager be directed to get the land measured and. demarcated to avoid encroachment. The Sub-Divisional Officer still thought it necessary that there should be a shop. On January 6, 1926, the manager wrote a letter Ex. D-1 to the District Engineer to get the land measured and demarcated. Oh the same date the manager wrote Ex. 1(b) to the Deputy Commissioner pointing out that there was no form in the Wards Manual and suggesting that the form in the Government Estates Manual might be used subject to necessary modification. This proposal was approved by the Deputy. Commissioner in his letter Ex. 1(c) dated February 24, 1929. On April 11, 1926, defendant No. 1 wrote to the Sub-Divisional Officer Ex. 2(a) pointing out that he had deposited the sum of Rs. 58 and asking that the lease might be executed. The General Manager wrote a letter Ex. G(2) on April 30 enclosing a draft lease and asking the Sub-Divisional Officer to get the acceptance of the defendant to its terms. The draft is Ex. F. Defendant No. 1, on August 26,1926, in his letter Ex. 2(c), raised an objection to the condition in Paragraph 2 of the draft lease which runs as follows:

Except with the previous sanction of the lessor in writing and on payment of a fee equal to 25,Per cent, of the yearly rental (provided that no such fee shall be less than Rs. 1 or more than Rs. 100) the lessee shall not transfer, assign, sublet or part with the possession of the said demised land and premises or any part thereof. In the case of succession by inheritance no fee as aforesaid shall be payable; the person succeeding shall apply forthwith to the lessor for mutation of names and such application shall bear the court-fee stamp prescribed by law.

The Sub-Divisional Officer on September 3, 1926, wrote Ex. 1(d) to the manager suggesting that the defendant not having accepted the terms of the lease should be ejected. On September 3, 1926, the manager wrote Ex. 9(e) to the defendant warning him that if he did not signify acceptance-of the terms of the proposed lease by September 17, 1926, legal steps would be taken to eject him. On September 13, 1926, defendant No. 1 wrote to the manager asking for the omission of Clause 2 to which the manager replied by letter Ex. 1(f) dated October 7, 1926, informing defendant that the clause in question cannot be omitted as it has been taken from the standard form sanctioned by Government and warning him that if he does not signify his acceptance of the terms by November 1, 1926, steps will be taken to eject him. The matter was referred to the Deputy Commissioner who on January 11, 1927, addressed letter Ex. 1(g) to the manager saying:,

I case see nothing in the correspondence to indicate that the lease would be without the usual clause about transfer and I cannot see that the man has any real grievance. Action may be taken for his ejectment, but no suit should be filed without my sanction. In the first place the man may be informed that I am not prepared to omit the clause complained of and told that he may relinquish the land and will receive back his salami on doing so.

The manager communicated the substance of this to the defendant in letter Ex. 1(h) dated January 20, 1927. Defendant does not seem to have replied. The manager addressed to him a letter Ex. 1(i) dated. March 25, 1.927, informing him that he should relinquish the land by April 20, or steps would be taken to evict him. It is clear from the correspondence that in his letter Ex. 2 the defendant gave an unqualified undertaking to accept a lease on the terms which are usual for similar settlements. If he gave this undertaking on a misunderstanding of a question of fact as to what such terms were then there is no enforceable contract between the parties. A contract to be enforceable must be one of which the terms are understood by both parties. If, on the other hand, there was a contract enforceable between the parties, then the transferee is in default by having refused to perform his part of the contract. Therefore in my opinion the, decision of the Subordinate Judge could not be supported even if the decision of the High Court in G.H.C. Ariff Vs. Jadu Nath Majumdar, , could be accepted as good law but as I have pointed out that decision was reversed by the Privy Council. The appeal must be allowed and the plaintiff''s suit decreed with full costs of all the Courts.