RAM NATH MANDAL Vs. JOJAN MANDAL

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs alleged that they had taken settlement of 16 kathas 12 dhurs of plots 2663 and 2612 appertaining to khatas 74 and 75 of village Jitapur from the defendants 2nd party who are co-sharer landlords to the extent of 6 annas 8 gandas share, It was contended by the plaintiffs that they had taken settlement in 1349 Fasli by means of a Parwangi granted on behalf of the co-sharer landlords. The suit was contested on behalf of the defendants 1st party who alleged that they had taken settlement of 2 bighas 7 kathas, including the disputed and, from the defendants 3rd party who are co-sharer malihs to the extent of 9 annas 12 gandas in the same tauzi. The suit was dismissed by the trial Court on the ground that the plaintiffs had failed to prove their title or possession within the statutory period. The decree of the trial Court has been reversed by the lower appellate Court in appeal. The finding of the lower appellate Court is that the plaintiffs had established their case of settlement from the defendants 2nd party who are co-sharer landlords to the extent of 6 annas 8 gandas share, It has also been found by the lower appellate Court that the defendants 1st party should he deemed to have taken settlement of the disputed land from the defendants 3rd party with regard to 9 annas 12 gandas share. On those findings the lower appellate Court has granted a decree to the plaintiffs declaring their title to 6 annas 8 gandas share of the disputed land and also granting a decree to the plaintiffs for joint possession of the disputed land along with the defendants 1st party to the extent of 6 annas 8 gandas share.

(2.) On behalf of the defendants 1st party who have presented the second appeal the main argument submitted by learned counsel is that the lower appellate Court is erroneous in holding that the plaintiffs have established, their title to 6 annas 8 gandas share of the disputed land by virtue of a settlement from the co-sharer landlords in the year 1349 Fasli. It was pointed out that the finding of the lower appellate Court is based upon the Parwangi (Ext. 11) dated the 1st Magh, 1349 Fasli, granted by the co-sharer landlords in favour of Jojan Mandal, plaintiff No. 1. It was argued that the lower appellate Court has committed an error of law in taking exhibit 11 into evidence on the question of title of the plaintiffs. In support of this argument learned Counsel referred to the decision in Maharani Janki Kuer v. Brij Bhikhan, 5 Pat LT 541 (AIR 1924 Pat 641), Ramautar Singh v. Jathi Tatma, 18 Pat LT 1012, Brikh Koeri v. Awadh Bihari Lal, AIR 1961 Pat 308 and Sobharam Mahto v. Raja Mahton, (S) AIR 1957 Pat 278. In our opinion the argument of learned counsel for the appellants on this point is well founded and must be accepted as correct. The true legal position is that under Section 117 of the Transfer of Property Act a lease for agricultural purposes is not necessary to be made by a written instrument. It may be effected by an oral agreement, and when so effected no registration is required, but if the transaction is reduced to writing, then, in the case of a lease from year to year or for any term exceeding a year or reserving a yearly rent, registration would be required under Section 17 of the Registration Act, and, if unregistered, the lease will be inadmissible in evidence under Section 49 of the Registration Act, and other evidence of its terms will be precluded under Section 91 of the Evidence Apt. This principle has been laid down in one of the earliest cases of this High Court by Dawson Miller, C. J. and Mullick, J. in 5 Pat LT 541 : (AIR 1924 Pat 641), and the principle has been repeatedly affirmed in subsequent authorities. The same view has bean expressed by the Supreme Court in a recent case, Sita Maharani v. Chhedi Mahto, (S) AIR 1955 SC 328. In view of the ratio of these authorities it is manifest that the lower appellate Court has committed an error of taw in taking exhibit 11 into evidence as proof of title of the plaintiffs in the present case. On behalf of the respondents it was suggested by learned counsel that there was a subsequent oral agreement of a lease between the parties and it was also suggested that the rent receipts, exhibits 1 to 1/H, would go to prove such an oral settlement. It is not possible for us to entertain this argument because there is no such case put forward by the plaintiffs in their plaint. It was not alleged by the plaintiffs that there was any oral transaction of lease; on the other hand, a reading of paragraph 6 of the plaint definitely shows that the plaintiffs based their title upon a written settlement of the year 1349 Fasli, and in proof of that written settlement the plaintiffs produced the Parwangi dated the 1st March, 1349 Fasli. For the reasons we have already stated it must be held that the Parwangi dated the 1st Magh, 1349 Fasli, cannot be taken into evidence in order to prove the title of the plaintiffs. It follows, therefore, that the plaintiffs have failed to establish their title to the disputed land In this case. On this ground the suit of the plaintiffs must fail and it must be dismissed.

(3.) For these reasons we allow this second appeal, set aside the judgment and decree of the lower appellate Court dated the 17th May, 1958, and restore the judgment and decree of the Additional Munsif of Madhepura, dated the 17th December, 1957.