KASHIRAO Vs. CHUNNIBAI

JUDGEMENT

(1.) Most of the facts giving rise to this appeal are not in dispute. The plaintiff-respondent is the owner of survey No. 613/4 of mouza Yeoda in Daryapur taluq in Amravati district. According to the plaintiff, the defendant-appellant was made a tenant of this land for one year, namely, 1957-58 by a contract of lease, dated 12th June 1957 Exh. P-1. The rent fixed was Rs. 180 payable on 15th Dec. 1957. If it was not paid on the stipulated date, some interest was allowed to be charged. On the same day, namely, 12th June 1957 the defendant executed a surrender-deed Exh. P-2 in favour of the plaintiff. That was a surrender-deed under section 6 of the Berar Regulation of Agricultural Leases Act, 1951 (No. XXIV of 1951) (hereinafter referred to as the Act of 1951). As a result of this surrender-deed, the defendant ceased to be a tenant of the land from 1st April 1958. Since the defendant did not surrender the possession nor paid the lease-money, the plaintiff filed this suit on 20th June 1958 for both the reliefs. He claimed possession from the defendant and claimed the lease-money together with interest as stipulated in the contract.

(2.) The defendant raised several defences by a written statement, dated 27th Dec. 1958. So far as the lease amount is concerned, it was stated that the defendant being a protected tenant, rent in excess of four times the land revenue cannot be charged. It was further stated that he has paid Rs. 25 towards the payment of land revenue and he should have been given credit for the same. His main defence was that the defendant became a protected tenant because of the contract made in 1957-58. He was in possession for a continuous period of several years from 1951-52 and every year a fresh kabuliyat was got executed and on some occasions a surrender deed was also got executed from him. This surrender-deed was a nominal document which was not to be acted upon and this was got executed on giving certain assurances to the defendant that the tenancy will never be terminated in fact and he will be continued year after year. It is also stated that the intention of the plaintiff in getting such surrender-deed was fraudulent as is now apparent from his conduct. It is further stated that the civil Court has no right to decide whether the defendant is a protected tenant or otherwise and the issues relating to the same may be referred to the revenue officers as provided by the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (No. 99 of 1958).

(3.) On these pleadings, the parties went to trial. The learned Civil Judge came to the conclusion that Act No. 99 of 1958 did not affect this case and the defendant's contention that the rent could not be charged in excess of four times the land revenue is not tenable. He, however, accepted the fact that the defendant had paid Rs. 23.41 towards land revenue for which credit was to be given, and for the balance amount together with interest a decree came to be passed. So far as possession is concerned, the learned Civil Judge rejected the contention of the defendant that the surrender-deed was a nominal one, that it was got executed fraudulently and that it was got executed by exercise of undue influence and fraud. He also held that there was no necessity to refer any of the issues to the revenue officers as mentioned in section 16-A of the Act of 1951 and the defendant never became a tenant under the provisions of Act No. 99 of 1958. The plaintiff's suit for possession was, therefore, decreed. Being aggrieved by this decree, the defendant filed Civil Appeal No. 161-A of 1959. The appeal was confined to the bar of possession only and the money claim was not in dispute in the appeal. It is also not in dispute before this Court. The learned District Judge negatived all the contentions of the defendant and held that the surrender-deed was genuine and it was not got executed by fraud or undue influence. The defendant had no right of tenancy and he was liable to surrender possession in terms of the surrender-deed. The decree for possession as passed by the trial Court was, therefore, confirmed. Being aggrieved by this decree relating to possession the defendant has filed this second appeal.