SIR BEJOY CHAND MAHATAB Vs. MUHAMMAD YASIN

JUDGEMENT

(1.) The rights of the parties who are interested in the result of the litigation leading up to the present appeal are to be determined principally upon the terms and conditions of a lease granted by Maharaja Mahatab Chand Bahadur of Burdwan to one Panjab Lal Babu, on 23rd Assar 1271 B. S. The kabuliyat executed by the lessee, so far as it is relevant for the purposes of the present case is to the effect following: I have remained in possession by taking lease in the benami of Sreenath Sen and paying Rs. 4-8-0 as the annual rant; now giving increase of 8 annas par year on the said rent, that, is, at the jama of Rs. 5 per year, and in consideration of Rs. 5, and on condition that if the Sarkar requires it, I shall give up the building and trees which I at my own expense may make (or grow), on taking the proper value at the market price at the time ... On the above conditions I applied for a mukarrari lease, and my prayer being granted, I being present, sign the mukarrari seharbund on the 30 Jaistha, and deposit the consideration money of Rs. 5....In case of there being any necessity for Hoozoorali to resume possession of the land demised, I shall relinquish it on getting the market price of the building and trees...and I shall get back the consideration money without any interest.

(2.) The son of the executant of this lease sold the properties covered by the same to defendant 3 in the suit, out of which this appeal has arisen, and defendants 1 and 2 are the purchasers of the same from defendant 3. Defendant 4 in the suit, the grandson of Panjab Lal Babu, is the executant of the kabuliyat mentioned above. Defendants 5 to 7 are sub-lessees of portions of the leasehold properties. The case of the plaintiff Maharajadhiraj Bahadur Bejoy Chand Mahatab of Burdwan, as stated in the plaint, and so far as it is relevant for the purposes of this appeal, was that, under the terms of the kabuliyat, he was entitled to eject the defendants for the reason that an Ayurvedic dispensary which was founded in the building standing on the lands in suit, under the patronage of the Burdwan Raj, might, by the acts of the defendant in the suit, cease to exist in the building. Defendants 1, 2 and 3 resisted the plaintiff's claim in suit; it was asserted by the contesting defendants, that the plaintiff could not, under the terms of the kabuliyat, eject them and get khas possession of the properties in suit.

(3.) The case sought to be made at the hearing of the case before the trial Court, has been very clearly stated in the judgment of the Munsif. The defendants contended that the covenant relating to determination of the lease and khas possession as contained in the lease was a personal covenant and did not run with the land; that the lease was a permanent lease, and a covenant like the one sought to be enforced in this case, offended the rule of perpetuities, and was therefore void; and lastly that the plaintiff was unable to make out the necessity for khas possession, for which alone the lease could be determined, and khas possession obtained by the plaintiff, under the terms of the lease. With reference to the last point mentioned above, the Courts below have concurrently held that the necessity for khas possession has been made out. The Courts below have however differed in their decisions in regard to the other two questions mentioned above. The Court of first instance held that the lease granted to Panjab Lal Babu was not a permanent one, though the rent was fixed for all time. The trial Court further held that the covenant relating to resumption of possession for the requirement of the landlord was not a personal covenant, but was one running with the land. In this view of the case the plaintiff's claim in suit was allowed by the Court of first instance, and a decree was passed in his favour in the terms mentioned in the concluding portion of its judgment. On appeal by defendant 2, the Court of appeal below, has reversed the decision of the trial Court, on the material points arising for consideration in the case. The learned Subordinate Judge, in the Court of appeal below, has held that the lease granted to Panjab Lal Babu was a permanent mukarrari lease; that the covenant relating to determination of the lease and khas possession was a personal covenant, and after the demise of Maharaja Mahatab Chand Bahadur, the grantor of the lease, the covenant has no force. The learned Subordinate Judge has also come to the decision that in the supposition that the covenant as to khas possession was one running with the land, it was a bad covenant under the rules of "perpetuities." As against the decision and decree which merely directs defendants 1, 2 and 3 to pay rent to the plaintiff for a certain period, in accordance with the terms of the kabuliyat under which the defendants are in possession of the properties in suit, the present appeal has been taken, and the decision of the Court of appeal below has been assailed as erroneous and unsustainable.