SAILESH CHANDRA SARKAR Vs. BIRESWAR CHATTERJEE

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff and it arises out of a suit for recovery of arrears of rent and cesses for the Bengali years 1327 to 1330 in respect of about 16 bighas of land mentioned in the plaint which the plaintiff alleged the defendant held under him at an annual rent of Rs. 35. The case of the plaintiff was that the defendant held this plaint land under a compromise arrived at between the parties in a previous rent suit No. 851 of 1918 and the case of the plaintiff was that the defendant had paid rent in respect of this tenancy for the years 1325 and 1326. The substantial defence raised by the defendant was that there was no separate tenancy of 16 bighas as alleged by the plaintiff at a jama of Rs. 35 but that the plaint land really appertained to the jama of Rs. 91 held by him under the plaintiff. With regard to the petition of compromise in the previous rent suit the case of the defendant was that it was an invalid, illegal and fraudulent compromise and as it was in contravention of the provisions of Secs.29 and 147-A, Ben. Ten. Act, it could not be given effect to. The Court of first instance held that the compromise was accepted by the Court and a decree was passed on the basis of the compromise. In those circumstances the Court was of opinion that although the compromise agreement operated as a lease and should have been registered as such, it was admissible in evidence inasmuch as the agreement was embodied in the decree. It was also held that the compromise agreement was for good consideration and was executed without any undue influence having been exercised by the plaintiff on the defendant or any fraud on his part. The Munsif accordingly decreed the plaintiff's suit.

(2.) Against this decision an appeal was taken to the Court of the Subordinate Judge of Burdwan. The learned subordinate Judge reversed the decision of the Munsif and dismissed the the plaintiff's suit. The lower appellate Court : came to the conclusion that the solehnama was inadmissible in evidence for want of registration, because the Solehnama really operated as a lease and it had to be registered notwithstanding the fact that it was embodied in a decree. It further came to the conclusion that it had been established that the lands were included in Ex. B, the lease under which the defendant originally held the land under the plaintiff at a rent of Rs. 91.

(3.) A second appeal has been preferred to this Court by the plaintiff and the main contentions before me by Mr. Bose who appears for the appellant have been : (1) that even if the solehnama be regarded as inadmissible in evidence the statement in the solehnama that the 16 bighas of land for which the rent suit was brought did not appertain to the jama of Rs. 91 should have been treated as an admission and solehnama should have been accepted in evidence at least for this limited purpose (2) that the finding that the lands in suit are included in the lease Ex. B, is not a proper finding as it is not based on evidence but on a reasoning which is open to considerable criticism.