JOGENDRA CHANDRA KAR Vs. SYAM SUNDER DAS

JUDGEMENT

(1.) This appeal arises out of a suit for khas possession and declaration of title to the disputed land, which is admittedly not an agricultural holding and is, therefore, governed by the Transfer of Property Act. Defendants Nos. 2 and 5 contested the suit, the former alleging that he was the plaintiff s tenant and the latter that he was a tenant under defendants Nos. 1 and 3, who according to the plaintiff were tenants at-will. The Munsif dismissed the suit, holding the claim barred by limitation and also that notice had not been validly served. He, however, held the question of title in plaintiff s favour. There was a previous suit No. 310 of 1910 in which defendants Nos. 1, 2 and the father of defendant No. 3 were party defendants, which was decreed on a Solenama against the present defendant No. 3, who was defendant No. 13 in that suit, and ex parte against the other defendants. The plaintiff s title was declared in that suit, but khas possession was not given and the present defendants Nos. 1 to 3 were declared tenants under the plaintiff. They formed a joint family, defendant No. 1 being the managing member. The decree in that suit was challenged in the present suit as fraudulent and collusive, but that contention was not substantiated. The first Appellate Court has rightly held the plaintiff s title established. It has also, we think, rightly held the suit not barred by limitation. The decree above, mentioned was not one for khas possession, and there was no necessity for taking delivery of possession. The possession of the tenants was tantamount to plaintiff s possession and the question of limitation does not properly arise.

(2.) The next point, the most serious one in this ease, is about the sufficiency of the notice. It has been held by both the Courts that a notice to quit was served on the defendants. The trial Court held that as the rent under the said decree was payable yearly, the defendants were entitled to six months notice. The Solenama was not registered, but was embodied in the decree. The first Appellate Court held that as an annual lease requires a registered document, the decree cannot operate as such. He also relied upon the rulings reported as Debendra Nath Bhowmik v. Syama Prosanna Bhowmik 11 C.W.N. 1124 and Aklu v. Emaman 33 Ind. Cas. 899 : 44 C. 403 : 20 C.W.N. 1005 in support of the view he took that fifteen days notice was all that was necessary in this case and that the defendants had sash notice.

(3.) It was contended before us on behalf of the appellants that as the terms were embodied in the decree, they were to be considered as operative and registration was not necessary and Pranal Anni v. Lakshmi Anni 22 M. 508 (P.C.) : 1 Bom. L.R. 394 : 3 C.W.N. 585 : 26 I.A. 101 : 9 M.L.J. 147 : 7 Sar. P.C.J. 516 : 8 Ind. Dec. (N.S.) 363 and Hemanta Kumari Debi v. Midnapore Zemindari Co. Ltd. 53 Ind. Cas. 534 : 24 C.W.N. 177 : 37 M.L.J. 425 : 17 A.L.J. 1117 : (1920) M.W.N. 66 : 27 M.L.T. 42 : 11 L.W. 301 : 31 C.L.J. 298 : 22 Bom. L.R. 488 : 47 C. 485 : 46 I.A. 240 (P.C.) were cited in support, but all that was agreed to upon a the compromise in this case was that the defendants were to be considered as tenants, it being stipulated that the yearly rent was to be a certain amount. Khas possession was sought for but was not allowed. The period of the tenancy was not fixed. The decree embodied these terms. Beyond the acknowledgment of tenancy by the defendants nothing further was covered by the suit. That a year to year tenancy was agreed upon, the term about the amount of the yearly rent alone is relied upon. But it has been held by this Court in, amongst otter cases, Mati Lal v. Darjeeling Municipality 18 Ind. Cas. 844 : 17 C.L.J. 167 and Durgi Nikarini v. Goberdhan Bose 24 Ind. Cas. 183 : 20 C.L.J. 448 : 19 C.W.N. 525 that the words "Barsik Khajna," yearly rent, do not necessarily imply that the tenancy is from year to year, The nature of the holding should be taken into account, which is admittedly in this ease not an agricultural holding, but one with a lodging house which is usually held from month to month. We think that under the circumstances the appeal fails, and should be dismissed with costs.