Sukhan Rai and Others vs Chakowri Singh and Others and Laldhari Gope and Others

Das, J.—This appeal arises out of a suit instituted by the respondent Chakowri Singh for recovery of possession of 1 1/2 bighas of land. The plaintiff relies upon a Kobala executed in his favour in December 1915 by the defendants first party, who admittedly at one time had title to the land in dispute and were competent to deal with it. It appears that prior to this Kobala the defendants second party had executed a mortgage deed in favour of defendants first party and the Kobala in favour of the plaintiff was expressly subject to the mortgage in favour of the defendants first party, The plaintiff deposited the mortgage money u/s 83 of the Transfer of Property Act and then instituted the present suit for recovery of possession of the land in dispute.

The suit was contested by defendants 1st party on the ground that though the document in their favour on the face of it was a mortgage document, still in reality it was a sale and that consequently the plaintiff could not oust them from possession of the land in dispute. It is conceded that the document purports to be an usufructuary mortgage. The question whether evidence of acts and conduct of the parties is admissible to contradict the terms of a document has been considered in many oases and has now been finally decided by the Judicial Committee in the case of Maung Kyin v. Ma Shwe La 42 Ind. Cas. 642 : 27 C.L.J. 175 : 15 A.L.J. 825, 33 M.L.J. 648 : 3 P.L.W. 185 : 6 L.W. 777 : 22 C.W.N. 257 : 23 M.L.T. 36 : 20 Bom. L.R. 278 : (1918) M.W.N. 300 : 45 C. 320 : 9 L.B.R. 114 : 11 Bur. L.T. 21 : 41 I.A. 236 (P.C.). In the case of Balkishen Das v. W. F. Legge 22 A. 149 : 27 I.A. 58 : 4 C.W.N. 153 : 2 Bom.L.R. 623 : 7 Sar P.C.J. 601 : 9 Ind. Dec. 1130 the Judicial Committee had held that oral evidence for the purpose of ascertaining the intention of the parties to the deeds was not admissible u/s 92 of the Indian Evidence Act, 1872. This case was considered in many subsequent, cases especially in a case reported as Khankar Abdur Rahman v. Ali Hafez 28 C. 256 : 5 C.W.N. 351 on which the Court of first instance strongly relied. The learned Judges in that case pointed out that though Section 92 of the Indian Evidence Act excluded evidence of any oral agreement or statement, it did not exclude evidence of the acts and conduct of the parties not being in the nature of an oral agreement. The authority of that case was very much shaken by a subsequent decision where the learned Judges held that evidence of the acts and conduct of the parties could only be proof either of a contemporaneous oral agreement varying: the terms of the written agreement or of a subsequent oral agreement having the same effect. In the first case clearly it would be inadmissible u/s 92. In the second case such a subsequent oral agreement must obviously be pleaded. I am only referring to the subsequent case for the purpose of showing that the authority of the only decision of the Calcutta High Court subsequent to Balkishen Das v. W. F. Legge 22 A. 149 : 27 I.A. 58 at p. 65 : 4 C.W.N. 153 : 2 Bom.L.R. 623 : 7 Sar P.C.J. 601 : 9 Ind. Dec. 1130, namely, the decision reported as Khankar Abdur Rahman v. Ali Hafez 28 C. 256 : 5 C.W.N. 351, has been much shaken. It is, however, unnecessary to consider all these cases, because the Judicial Committee in the latest case reported as Maung Kyin v. Ma Shwe La 42 Ind. Cas. 642 : 27 C.L.J. 175 : 15 A.L.J. 825, 33 M.L.J. 648 : 3 P.L.W. 185 : 6 L.W. 777 : 22 C.W.N. 257 : 23 M.L.T. 36 : 20 Bom. L.R. 278 : (1918) M.W.N. 300 : 45 C. 320 : 9 L.B.R. 114 : 11 Bur. L.T. 21 : 41 I.A. 236 has finally decided that evidence of acts and conducts of parties is not admissible in evidence in order to contradict or vary the written terms of an agreement. In my view, therefore, the Court below has taken a correct view of the law on the subject.

But it was argued with very great ingenuity by Mr. Abani Bhushan Mukherji on behalf of the appellant that though he could not rely upon the document executed in his favour by the defendants second party, still he was entitled to rely upon the facts showing that a new tenancy was created in his favour from the year 1309. He relies upon the eighth paragraph of his written statement, in which he states that "in the beginning of 1309 Fasli the name of defendant No. 1 was entered in the office of the Malik with respect to the disputed land and on the consent of Dhanoo Grope the jama of the said land was separated and a separate receipt was since then granted to these defendants." I do not think that the defendant is really pleading a new contract of tenancy in the eighth paragraph of the written statement. He is merely relying upon the acts and conduct of the parties showing that the document executed in his favour by defendant second party, though it purported to be a mortgage deed, was in reality a conveyance. But even if Abani Babu''s construction of the written statement is right, namely, that be was pleading a new tenancy, I do not think that there is any finding of the Court below which supports him. The Court of first instance considered this point and having considered the point, it came deliberately to the conclusion that the rent receipts were not sufficient to establish that the defendants first party were recognised by the Maliks and the only finding of the Court of first instance was to the effect that the defendants first party used to pay rent separately for the disputed land on their own account, whether or not they were formally recognized as required by law. This finding was accepted by the lower Appellate Court and is, therefore, binding on me. Therefore, I must accept that the defendants first party paid rent to the Maliks and got rent receipts. But this is equally consistent with the defendants first party having paid rent as usufructuary mortgagee in actual possession of the land in dispute. In my view this does not amount to a finding that there was a new tenancy created in favour of the defendants first party.

I am of opinion that the lower Appellate Court has taken an entirely correct view of the matter and I would accordingly dismiss this appeal with costs.