JAINARAIN CHOUDHARY Vs. BISESWAR PRASAD

JUDGEMENT

(1.) This appeal by the plaintiff is directed against the judgment and decree of the Subordinate Judge, 2nd Court, Muzaffarpur, passed in Money Appeal No. 4 of 1948, affirming the judgment and decree of the Munsif of Hajipur passed in title suit No. 175 of 1946, whereby he dismissed the plaintiff's suit.

(2.) On 28-4-1940, Biseshwar Prasad defendant No. 1, Singheshwar Prasad, husband of defendant No. 5 and Umapati Prasad, another brother of defendant No. 1 gave their 7 annas 13 'gandas milkiat' interest and 1 bigha 3 kathas 14 dhurs of 'zeraif land containing trees in village Bhatauli, tauzi No. 3686 in 'zarpeshgi' to the plaintiff for Rs. 5000 by three registered bonds, Exts. 6 to 6(b). For the sake of convenience in the redemption three registered bonds were taken, namely, Ex. 6 for a sum of Rs. 1500, the due date of payment in Which was the 30th Baisakh, 1348 Fasli, Ex. 6(a) lor Rs. 1500, the due date of payment being the 30th Bhado, 1348 Fasli and Ex. 6(b) for Rs. 2000, the due date of payment being the 30th of Baisakh, 1349 Pasli. The plaintiff came in possession of the 'zarpeshgi' land. Subsequently on 28-8-1940, defendant, No. 1 and Singheshwar Prasad, husband of defendant No. 5, took a 'thika' lease of the 'zarpeshgi' land on an annual rent of Rs. 475 by means of registered 'kabuliat' and patta for two years from Baisakh, 1347 to Baisak 1349 Pasli. It may be noted that the third mortgagor Umapati Prasad, brother of defendant No. 1, was not a party to this lease. The lessees came in possession of the 'zarpeshgi' properties as the 'thikadar'. The plaintiff's case is that after the expiry of the 'thika' the defendant No. 1 and the husband of defendant No. 5 held over and remained in possession on the same term. They not having paid anything towards the rent of the 'thika' lease, the plaintiff brought a suit for recovery of Rs. 2850 being rent for six years from 8 annas 'kist' of 1347 Pasli to 3 annas 'kist' of 1353 Fasli plus a sum of Rs. 1011/12.00 as interest at the rate of 12 per cent per annum. The plaintiff also made an alternative prayer that if for any reason the 'patta' and 'kabuliat' be deemed to be illegal, then in that case a decree for Rs. 2850 principal and Rs. 1011/12- interest, may be passed in his favour on account of the use and occupation of the properties in suit by the defendants. It may be noted here that defendants 2 to 4 are the minor sons of defendant No. 1. The suit was contested by defendant No. 1 and his defence, 'inter alia', was that the plaintiff had no cause of action, the suit was bad for defect of parties, it was barred by limitation, the defendants were not in possession after the expiry of the lease, they did not hold over and that the rent for the 'thika' period, namely, from Baisakh 1347 to Baisakh 1349 Fasli. had already been paid. The trial court held that the suit was not bad for defect of parties, no valid lease was created due to non-compliance of the provisions of Section 107, T. P. Act and, as such, it was not enforceable under the law,' that the defendants were in fact in possession of the property in question for the period in suit, but since the lease itself was invalid, they could not be said to be holding over according to law. He also considered whether the plaintiff was entitled to claim interest on the mortgage itself, but held that no decree for such interest could be passed as Umapati was not a party to the suit. He, however, disbelieved the plea of payment raised by the defendants and also held that the suit for 'thika' rent was barred by limitation and that the suit for damages and interest would lie for three years only. On the view that he took that the defendants did not, in law, hold over the land in suit, he did not think the plaintiff to be entitled to get a decree for use and occupation. Hence he dismissed the plaintiff's suit. The plaintiff preferred an appeal against the decree of the Munsif. Before the appellate court it was conceded on behalf of the plaintiff-appellant that no valid lease as contemplated under Section 107, T. P. Act was created and similarly it was conceded on behalf of the defendants-respondents that the findings of the learned Munsif that there was no defect of parties, that the defendants were in possession of the 'zarpeshgi' property for the period in suit and that the defendants did not pay anything towards the rent were correct, and, therefore, the court of appeal below did not think it necessary to discuss those points in his judgment. The only point that was agitated in the court of appeal below on behalf of the plaintiff was that he ought to have been given a decree for the 'thika' rent, though not as rent, but as damages for use and occupation. The lower appellate court held that, after the expiry of the due dates of the 'bharna' money, the plaintiff could not maintain the suit for rent or for damages for use and occupation and that his only remedy was by a suit under Section 68, T. P. Act, no decree even for interest on the mortgage money could be passed as Umapati was not a party to the suit and that the suit for use and occupation from 8 annas 'kist' of 1347 Fasli to 8 annas 'kist' of 1350 Fasli was barred by limitation. It may be noted here that the learned advocate appearing for the appellant in the court below conceded also on the point that the suit was barred by three years' limitation. On these findings the lower appellate court affirmed the judgment and decree of the trial court and dismissed the appeal. Against the judgment and decree of the lower appellate court the plaintiff has come up in appeal to this Court.

(3.) The thika lease taken by defendant No. 1 and the husband of defendant No. 5 was created by execution of a registered 'kabuliat' by those two persons in favour of the plaintiffs well as by execution of the corresponding 'patta' by the plaintiff in their favour, but the defect was that the plaintiff did not sign the 'kabuliat' executed by the defendants and the defendants did not sign the 'patta' executed by the plaintiff. Section 107, T. P. Act provides: "Where a lease of immovable property is made by a registered instrument, such instrument, or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee." The provisions of this section thus not having been complied with, it was held by the courts below that the lease was invalid and Mr. B. N. Mitter for the appellant has conceded before me that that finding is correct in law. Mr. Mitter, however, has argued that though the said 'kabuliat' and patta did not create any valid lease, they were admissible in evidence to show as to when and in what capacity the defendants entered into possession of the property in suit in order to give to the plaintiff a decree for use and occupation, and they may also be taken into evidence to give an indication as to the measure of damages that may be awarded to the plaintiff. In support of his contention he has relied on the Full Bench decision of -- 'Sheo Karan Singh v. Parbhu Narain Singh', 31 All 276 (FB) (A). In that case His Highness the Maharaja of Banaras sued for arrears of rent relying on a registered 'kabuliat' executed by the defendants on the faith of which they were let into possession of the property in question. No lease was, however, executed by the Maharaja, As a mere 'kabuliat' without there being a lease by the landlord was not sufficient to constitute a contract, it was argued in that case that no decree for rent on the basis of that 'kabuliat' could be passed in favour of the plaintiff. Their Lordships held that the claim of the plaintiff could be treated as one for compensation for the use and occupation of the land. Their Lordships also considered the 'kabuliat' as a good piece of evidence for determining the measure of compensation that might have to be awarded for use and occupation, on the basis of the amount of rent fixed by that document. This case was followed in the Full Bench decision of the Lahore High Court in -- 'Mohan Lal v. Ganda Singn', AIR 1943 Lah 127 (FB) (B). In that case a deed of mortgage with possession of a certain house was executed by one Jhanda Singh in favour of the plaintiff Mohan Lal and on the same day Jhanda Singh executed a 'kabuliat' in favour of the mortgagee-plaintiff Mohan Lal agreeing to pay Rs. 8 per mensem as rent to the mortgagee. The rent having fallen into arrears, the plaintiff brought a suit for its realization. Both the trial court and the lower appellate court held that as. the lease was not valid due to non-compliance of Section 107, T. P. Act, it could not be looked into for asking a decree in favour of the plaintiff. It was held by the Pull Bench that though the lease was invalid due to non-compliance of the provisions of Section 107, T. P. Act, yet it contained an admission or an acknowledgment by the person attempted to be made liable and should be the very best evidence that one can possibly have as to the oral agreement of lease, particularly when it was well known that these documents usually come into existence only after agreements between lessors and lessees are arrived at and the terms of the tenancy are settled . Their Lordships, therefore, took the view that the 'kabuliat' could be looked into for the purpose of giving a decree to the plaintiff by way of compensation for use and occupation, as had been held by the Full Bench in -- '31 All 276 (A)'. In the Transfer of Property Act by Sir D, P. Mulla, third edition, at p. 631, there is an important commentary on "use and occupation". It runs as follows : "A tenant at will is not liable to pay rent because there has been no demise to him. He is not liable for mesne profits or damages like a trespasser because his occupation is permissive. But he is liable to pay compensation for use and occupation. If the rent is fixed, or there is an express agreement as to rent, the amount fixed or agreed, is recoverable, the amount so fixed or agreed being evidence of the quantum payable. If there is no express agreement that he should pay, the mere fact of this occupation of the land of another implies an agreement to pay reasonable compensation."