UDAYANARAYAN ANANGA BHIMA DEO Vs. BADIA DASU

JUDGEMENT

(1.) THIS is a plaintiff's Second Appeal in a suit for recovery of Mustajarj rent. According to the plaintiff, the defendants took a Mustajari lease for collecting rents from the tenantsfor the Fasli 1353 and agreed to pay a certain sum, namely, Rs. 14/3/12/11. They have not respected the contract. Hence the suit.

(2.) THE defence is that there was no such lease nor did they make any collections. On the contrary, they state that the estate -holder himself made khas collections for certain period of the suit land. Both the Courts below have come to a finding that, in fact, there was a lease though in law there was not. The learned Munsif came to a very clear finding that after the execution of the lease, there was given delivery of possession to the defendants who, in pursuance thereof, entered upon the tenure and made collections. The plaintiff, however, adduced no evidence to show what, was the amount collected by them.

(3.) IT may be true that there was an auction and the defendants were the highest bidders for the lease. But we are convinced on reading Ex. 1 that it is a lease and also it purports to be so. It embodies all the terms of the lease and is executed both by the lessor and lessee. The real contention, on this head, is that if this document is not a lease -deed, can the lease, alleged in this case, be said to have been created by an oral agreement and can such a lease be made orally as it is for one year only. On reference to Rule 107, T.P. Act, it is clear that all leases of immovable properties other than those from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made either by a registered instrument or by oral agreement accompanied by delivery of possession. According to Mr. B. N. Das, the learned counsel for the appellant, it was in course of the auction that the terms of the lease were settled and the relation between the parties was created and that the so -called lease -deed was a mere memorandum of events and facts that had taken place and that the delivery of possession, subsequent to the written document (Ex. 1), should be taken to be a delivery accompanying oral agreement within the meaning of the section. None of the Courts below have accepted this contention nor are we going to accept it. As I have already indicated, it was a regular lease -deed and is, therefore, a document compulsorily registrable. It cannot, therefore, be taken into evidence in proof of creating any relationship of lessor and lessee as between the parties. But for what I am going to say presently, on this ground alone, the plaintiff could not have been non -suited.