CHANDRA NATH MUKHERJEE Vs. CHULAI PASHI

JUDGEMENT

(1.) THIS second appeal by the plaintiff arises from a suit of declaration of the plaintiff's title to the suit land and for recovery of khas possession therein and also for recovery of mesne pro -fits for three years.

(2.) THE case of the plaintiff Chandra Nath Mukherjee was briefly as follows. On 10 -4 -1937, defendant No. 2, Ram Dhani Barui took settlement of the plot described in item No. 1 of schedule Ka, measuring .03 acre, for erecting a dwelling hut thereon, no period being mentioned in the Kabuliat which was duly registered. The rent reserved was Rs. 6/ - per year. On 30 -10 -1939, defendant No. 3, Rani Bala Dasi, executed a registered Kabuliat in respect of the plot of land described in item No. 2 of the schedule Ka, measuring also .03 acre, purporting to take lease of the land for an indefinite period at the yearly rental of Rs, 7 -8 annas. This was also for the purpose of erecting a dwelling house. Rani Bala, defendant No. 3, was the wife of Ram Dhani, defendant No. 2, and though the settlement was taken by two different kabutiyats on two different dates, ultimately the two plots were regarded as comprising one holding and the defendants Nos. 2 and 3 erected a dwelling house thereon and lived there for sometime and paid rent to the plaintiff. But after 7 or 8 years Ram Dhani and Rani Bala left the place and defendant No. 1, Chulai Pashi, began to possess both the plots of land described in schedule Ka. The plaintiff never received any rent from defendant No. 1, Chulai Pashi and treated him as a trespasser. When the plaintiff went to take khas possession of the land from Chulai Pashi, after defendants Nos. 2 and 3 had left the place, defendant No. 1 gave out that he had purchased the land from Ram Dhani and Rani Bala by two sale deeds. But according to the terms of the lease which were granted to Ram Dhani and Rani Bala, they had no right to transfer their right as lessee in the land and there was a condition in the kabuliyats that if they transferred their lease -hold right the lease would be considered determined and the landlord would be entitled to take khas possession. The plaintiff, therefore, claimed that he was enlitled to get khas possession of the suit land, and the plaintiff also claimed mesne profits at the rate of Rs. 36/ - per year for the period of 3 years. The suit was instituted on 2 -4 -1947, that is, within 10 years from the date of the first kabuliyat executed by Ram Dhani.

(3.) THE learned Munsif held that defendants -Nos. 2 and 3 obtained possession of the suit land on the basis of the registered kabuliats dated 10 -4 -1937, and 30 -10 -1939 which were marked Exts. 1 and 1(a) respectively and not about 2 years before the execution of the first kabuliyat as alleged by the defendants. The learned Munsif also held that the execution of the kabuliyats was not obtained by fraud or undue influence and that the defendants knew the terms of the kabuliyats. The learned Munsif also -held that defendants Nos. 2 and 3 had sold their leasehold interest to defendant No. 1 by two kabulas executed on 24 -8 -1946, and that they intended to sell their leasehold rights and it was not true that they really intended to execute mortgage bonds, but that sale deeds were written out fraudulently at the instance of an officer of the plaintiff. But the learned Munsif also found that the kabuliyats Ext. 1 and'; l(a), though registered were not valid instruments of lease because they were not executed by both the -lessor and lessee as required by paragraph 3 of Section 107 of the Transfer of Property Act. Accordingly, the learned Munsif hold that the plaintiff could not get advantage of any covenant restricting alienation and providing for re -entry of the plaintiff on such alienation. It was held that defendants Nos. 2 and 3 had obtained right as lessee by occupation of the land and payment of rent for the same to the plaintiff which rent was accepted by the plaintiff, and that they had the right to sell their leasehold right to defendant No. 1, and defendant No. 1 was also protected because the plaintiff could not on account of the invalidity of the lease deeds get the benefit of the covenant for re -entry on alienation by the original lessees. In the circumstances, the learned Munsif held that the plaintiff should only get a declaration of his title to the suit land but could not get khas. possession or mesne profits. The suit was disposed of accordingly.