RAM ABATAR MAHATO Vs. SHANTA BALA DASI

JUDGEMENT

(1.) This appeal is by the defendant in a suit for ejectment. The plaintiff instituted the suit against the defendant alleging that he was a thika tenant liable to ejectment without any notice according to the terms of a kabuliyat executed by him on the 23rd May 1938. The defence of the defendant, inter alia, was that the suit was liable to be dismissed as the plaintiff had no right to terminate the tenancy of the defendant without service of a notice to quit.

(2.) The trial Court accepted the above plea of the defence and held that the document upon which the plaintiff relied, namely, the document of the 23rd May 1938, was not admissible in evidence and therefore the plaintiff was required to serve a notice for the purpose of terminating the tenancy of the defendant. The learned Munsif accordingly dismissed the plaintiff's suit and against that decision the plaintiff filed an appeal The lower appellate Court has come to the conclusion that the document upon which the plaintiff relied was not a lease within the meaning of the Transfer of Property Act and therefore did not require registration and should therefore be admitted into evidence and secondly, even if this document was not admissible for the purpose of proving the terms of the lease, it was at any rate admissible for a collateral purpose. The appellate Court accordingly set aside the decision of the learned Munsif and remanded the case to that Court for trial of other issues which were raised by the parties. Against that judgment, the defendant has filed the present appeal.

(3.) Mr. Mukherjee appearing in support of the appeal has argued in the first instance that the document upon which the plaintiff bases his case is a lease and as it is not registered, it is not admissible in evidence and he has, therefore, argued that the Court of Appeal below has erred in law in holding that the term embodied in the document to the effect that the defendant would vacate without any notice is one of the terms of the lease and the document cannot be admitted into evidence for proving this term. Mr. Banerjee appearing for the respondents at one stage attempted to support the decision of the lower appellate Court on the ground that the plaintiff could rely upon the provisions of Section 53A of the Transfer of Property Act for the purpose of his case but it seems to me that Section 53A can have no application to the present case because here the document upon which the plaintiff was relying was not a contract of transfer by the lessor but is a kabuliyat executed by the lessee. In our opinion, in a case of this description Section 53A of the Transfer of Property Act can have no application. This conclusion is supported by the decision of Mr. Justice Chunder in the case of --'Sm. Krishnamoni Dasi v. Fanindra Kumar Mukherjee', Second Appeal No. 264 of 1950, D/-20-3-1952 (Cal) (A). We respectfully agree with the view expressed by Mr. Justice Chunder in that case.