GARAJ NARAIN SINGH Vs. BABULAL KHEMKA

JUDGEMENT

(1.) The defendant is the appellant before this Court against a judgment of reversal. The trial court had dismissed the respondent's suit which has been decreed in appeal by the Lower Appellate Court. The respondent instituted the present title suit for declaration of his title and recovery of possession with regard to survey Plot No. 965, Khata No. 211 corresponding to the revisional survey Plot. No. 344, which is a part of Ranchi town within the municipal area bearing originally municipal holding No. 970, which was converted into holding No 1130 at the tune when the suit was filed.

(2.) According to the plaintiff's case, the land in question originally was the raiyati holding of one Silas Oraon, and one Gulam Rasul was the landlord of the tauzi in question. It may be stated here that tenancy in such cases was governed by the provisions of the Chota Nagpur Tenancy Act, 1908. It is alleged that by a registered deed dated 3rd December, 1940, Silas Oraon aforesaid surrendered the holding to Gulam Rasool, This registered surrender deed is Exhibit 4 On the record. Two days later, it is asserted, on 5th December, 1940, Gulam Rasul executed a registered patta (Ext. 5) making a permanent Chhaparbandi lease in favour of the plaintiff for a consideration of Rs. 400/-. The defendant was alleged to be a monthly tenant inducted on the premises in question by the plaintiff at a monthly rent of Rs. 10/-. The plaintiff instituted on an earlier occasion Title Suit No. 80 of 1963 in the court of Munsif, Ranchi, for eviction of the present appellant from this very plot of land. In that suit the appellant denied the relationship of landlord and tenant between the parties and claimed to be in possession of the property in his own right as an owner. Certain title was set up and pleaded in defence in that suit. The learned Munsif who heard the suit held that the question of title was alien to that suit since it was a suit for eviction under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. It was further found that the plaintiff had not been able to establish the relationship of landlord and tenant between the parties, and the suit was accordingly dismissed by a judgment and decree dated 13th Janu-any, 1964, Against that iudgment and decree the plaintiff preferred an appeal, being Title Appeal No. 14 of 1964 before the Judicial Commissioner, Ranchi, which was ultimately heard by the 4th Additional Judicial Commissioner. At the final hearing of that appeal a consent decree was passed in these terms on 12th January 1965:

(3.) The defence of the appellant was, inter alia, that the suit was barred by limitation: the plaintiff had no subsisting title or possession over the suit property; the suit was barred by the principles of res judicata; the story of surrender and settlement pleaded by the plaintiff was wrong, as no question could arise with regard to surrender of a municipal holding, nor was there any provision of law as such. There was no lease as alleged, nor could the document alleged to be the lease be treated as a lease at all. The appellant further denied the relationship of landlord and tenant and that he was in permissive possession over the land in suit. The question of serving a notice under Section 106 of the Transfer of Property Act did not arise as the defendant was never a tenant under the plaintiff. The defendant further set up his own title and claimed to have been coming in possession since 1936 under a title acquired not from Gulam Rasul but from another person alleged to be the owner of the plot in dispute. On these pleadings the trial Court held, on the relevant issues, that the previous decision being a consent decree would not operate as res judicata in the present suit. But it was held that the two deeds Exts. 4 and 5, being registered deeds of surrender and lease dated 3rd December, 1940 and 5th December, 1940. respectively, were actually parts of the same transaction. It was in fact a sale by Silas Oraon to the plaintiff, and a colour of surrender and subsequent settlement was given to it merely in order to defeat the provisions of and to get over the bar imposed by Section 46 of the Chota Nagpur Tenancy Act. It was further held that Ext. 5 being a registered patta and signed by Gulam Rasul alone could not confer any valid title on the plaintiff, as it was in contravention of the provisions of Section 107 of the Transfer of Property Act. The trial court further held that although the title pleaded and set up by the defendant appellant had not been proved, the defendant was in possession of the land in suit since 1936 or at least from 1948, but not as a tenant of the plaintiff. On these findings the trial Court dismissed the plaintiff's suit.