MOHAMMED KHAN Vs. RAMNARAYAN MISRA

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiffs -respondents for declaration of their sole right to collect, remove, and sell Kendu leaves from inside the borders of the Garloisingh Zamindarl in Sambalpur district, and for recovery of a sum of Rs. 88200/ - from the defendants for 'wrongful collection and removal' of the same during the years 1944 to 1946. The plaintiffs also prayed for an injunction restraining the defendants from interfering with their right to collect Kendu leaves in future, for the period covered by the contract entered into between the plaintiffs and the deceased Zamindar, Madan Mohan Singh. Defendant 1 is a lessee from defendant 2 who is the present Zamindar of Garloisingh. The father of defendant 2 executed a document, Ex. 19 datEd 29 -1 -1938, in favour of plaintiffs 1 and 2 permitting them to collect and remove kendu leaves within the ambits of his Zamindari for a period of 15 years commencing from 1944. The plaintiffs agreed to pay an annual royalty of Es. 6,000/ - for the privilege granted by the zamindar. On the same date and simultaneously with the document described as a lease the previous zamindar executed a bond for Rs. 10,000/ - in favour of the plaintiffs stipulating that the royalty payable by the plaintiffs under the lease should be adjusted towards interest accruing due under the debt bond if the debt bond remained undischarged till then. Within a few months after the execution of the two deeds marked as Exs. 19 and 18 respectively, the executant died and his son defendant 2 succeeded to the zamindari. Defendant 1 pleads that under a similar document executed by the late Madan Mohan Singh in 1937 he had been granted the exclusive right of collection and removal of kendu leaves from the same area for a period of five years commencing from 1939 and that he had been exercising that right for about 25 years prior to the suit. It is further alleged that under the lease deed executed jn his favour (Ex. H -2) on 23 -9 -1937 the late Madan Mohan Singh undertook to renew the contract in favour of defendant 1 and not to give it to any other person. In pursuance of the covenants in the contract, defendant 2 who succeeded to the zamindari executed a registered patta (Ex. M dated 29 -3 -1940) granting the exclusive right of collection and disposal of kendu leaves to defendant 1 for the years 1944 to 1953. Defendant 1 also pleaded that the lease in favour of the plaintiffs was extinguished on the death of the zamindar Madan Mohan Singh who was holding only a life estate in the impartible zamindari of Garloisingh and that the plaintiffs have no cause of action against him find that he continued in possession under a lawful title derived from defendant No. 2.

(2.) A number of issues were raised at the trial each party questioning the validity of the grant in favour of the other. The contract in favour of the plaintiffs was assailed on the ground of undue influence, coercion, estoppel and want of consideration, but all these issues were found against the defendants, and learned counsel appearing for the appellants did not seriously press these points before us.

(3.) IT may therefore be taken as proved that the plaintiffs, both of whom are lawyers and moneylenders knew what they were bargaining for and knew or could easily have ascertained the terms and conditions of the bond under which defendant 1 was in possession, curiously enough the plaintiffs slept over their rights till after defendant 1 had exercised his rights under Ex. M dated 29 -3 -1940, the patta granted by defendant 2 which was to operate from 1944 to 1953. On 30 -5 -1944, the plaintiffs sent a registered notice, Ex. 21, to defendant 2 to the effect that they had adjusted the amount of Rs. 600/ - fixed as royalty for the gathering in of the kendu leavestowards interest due under the bond, Ex. 18. Defendant 2 sent his reply, Ex. 21 -B dated 12 -4 -1944,denying knowledge of the lease executed by his father. He further said that he was not bound by the lease even if any such lease had been executed. He intimated that he had appointed defendant 1 as the exclusive Thikadar and that the latter was in possession as such. The plaintiffs, however, did not choose to call upon defendant 1 to vacate the premises so that they may themselves pluck kendu leaves under their lease. A year after this, the plaintiffs again sent a letter dated 20th March (Ex, 23) to defendant No. 2 tendering a sum of Rs. 600 and threatening a suit for compensation for the year 1944. A copy of this was sent to defendant 1, but no further action was taken by either party. It was on 13 -3 -1947 that for the first time, the plaintiffs sent a letter Ex, 3 challenging the right of defendant No. 1 to collect kendu leaves from the zamindari, and calling upon him to make good a sum of Rs. 90,000/ - to cover the losses suffered by them. Defendant 1's reply (Ex. B) dated 24 -3 -47 states that he had been exercising his right to collect kendu leaves since the year 1921 and that he was continuing to do so in his own right. Shortly after this exchange of letters the suit was instituted for the recovery of Rs. 88,200/ - for the wrongful deprivation of the plaintiffs' profits. The appellants tendered in evidence a certified copy of the plaint filed by the plaintiffs in Money Suit No. 3 of 1947 for recovery of the principal and interest due under the money bond (Ex. 18). The plaint and the judgment in that suit were exhibited as Exs. P. and Q. The plaint shows that the suit was filed on 26 -1 -1947 - - nearly two and a half months prior to the institution of the present suit.