MAHIPAL SINGH Vs. LALJI SINGH

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs in an action in ejectment. They claim under an instrument executed in their favour by the landlords respondents on the 21st November 1904. The principal defendants also claim title to the disputed property under the same landlords. The Court of first instance tried only the 4th issue in the case, namely, whether settlement of the disputed property by the Raj Baneli with the plaintiff should prevail over the alleged right, title and interest of the defendants first and second party and whether the plaintiffs have acquired title to the disputed property by the said settlement and by right of previous possession?" The Subordinate Judge answered the question raised against the plaintiffs and dismissed the suit. Upon appeal, the District Judge has affirmed the decree of the Subordinate Judge; he has held that the instrument upon which the plaintiffs rely does not amount to a lease and they have consequently acquired no title to the land in dispute. On behalf of the plaintiffs, the position has been controverted, and it has been argued that, upon a true construction of the agreement, the plaintiffs, have acquired the status of lessees.

(2.) The document recites in the preamble that the present plaintiffs had intimated to the landlords that it was necessary that they should protect the ahar or the reservoir for the storage of water, and that when the ahar became dry and no water remained in it, they should sow rabi crops on it. These terms were apparently accepted by the landlords, and the tenants executed a kabuliyat which is described as an ekrarnama or agreement in favour of the landlords. There are five clauses in this document. The first of these provides that the tenant would have power to cultivate the bed of the ahar in any year, yet the bed and the water of the reservoir would be considered to be in the khas possession of the landlords and, it would be necessary for the tenant to take proper care of its water, fishes and vegetable products; it is further stated that the grantee would have no title whatever over these things which would be the khas property of the malik zemindars. The second Clause provides that the grantee would be able to cultivate the bed of the reservoir, but that for obis purpose, he must obtain the written consent of the authorised officer of the proprietor. The third Clause provides that the grantee would pay rent at the rate of Rs. 51-4, besides cesses, and that he would not be at liberty to claim exemption from payment of rent on the ground that the bed of the reservoir was covered with water and he had not been able to bring it under cultivation. The fourth Clause provides that the grantor would be at liberty at any time to annul the ekrarnama and no claim or objection on the part of the grantee would be of any avail. The fifth Clause provides that the-grant would continue in operation for a period of seven years, bat the grantee would be at liberty at his option to annul the agreement upon three months notice. Provision is also made in the document for the measurement of the land according to the standard prescribed. It has been argued on behalf of the plaintiffs-appellants that this grant was in substance a, lease and in support of this view, reference has been made to the case of Seeni Chettiar v. Santhanathan Chettiar 20 M. 58 : 6 M.L.J. 281 to show that even a grant for the purpose of cutting timber is a grant of an interest in immoveable property. The case mentioned is, in our opinion, not directly of any assistance to the appellants. No doubt, as was ruled in that case as also in the cases of Mammikkutti v. Fuzhakkal 29 M. 353 and Abdulullah Sarkar v. Asraf Ali Mandal 7 C.L.J. 152 there may be a grant of an interest in immoveable property, even though the grant does not amount to that of a lease-hold interest. The case of Mathura Das v. Jadubir Thapa 28 A. 277 : 3 A.L.J. 138 : A.W.N. (1906) 4 on the other hand, indicates that a grant of this character may be construed as one for standing timber. The true question, which arises in the case before us is, whether the grant involved transfer of an interest in immoveable property; if it did, the grantees were in the position of tenants; if it did not, they were at best in the position of licensees. In our opinion, the clauses taken together indicate amply that the grant amounted to a lease. Much reliance has been placed by the respondent upon the first Clause of the agreement, to the effect that although the grantee would have the power of cultivating the bed of the reservoir, yet the bed and the water of the reservoir would be considered to be in the khas possession of the landlords. But this does not necessarily indicate that the grant in its essence was other than a lease. The grantors reserved to themselves the right in the fishes, vegetables, fruits and other products yielded by the reservoir; it was in aid of this limited purpose alone that they retained possession of the ahar. At the same time, it is clear that when the grantees brought the land under cultivation, it would then, at any rate, be in their exclusive possession. As was pointed out by Mr. Justice Blackburn in the case of Roads v. The Overseers of Trumpington 6 Q.B. 56 at p. 64 : 40 L.J.M.C. 35 : 23 L.T. 821 to give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee requires that he should have exclusive possession. In the case before us. it would be impossible for the grantees bring the dried up bed of the reservoir under cultivation if the grantor was at liberty to interfere with their possession during the progress of cultivation. We hold, therefore, that subject to the right reserved by the grantor, the grantee was entitled to exclusive possession. It follows, consequently, that there was a present demise, because, as Lord Davey observed in the case of Glenwood Lumber Co. v. Phillips (1904) App. Cas. 405 at p. 408 : 73 L.J.P.C. 62 : 90 L.T. 741 : 20 T.L.R. 531 if the effect of the instrument, taken as a whole, is to give the holder an exclusive right of occupation of land, though subject to certain reservation or to restriction of the purpose for which it may be used, it is in law a demise of the land itself. The distinction between a license and a lease was explained by a Full Bench of this Court in the case of Secretary of State for India v. Karuna Kanta Chowdhry 35 C. 82 at p. 99 : 11 C.W.N. 1053 : 6 C.L.J. 342. That distinction is, that in the case of a license, there is no transfer of interest in land, whereas in the case of a lease, there is a transfer of such interest. Taking the instrument as a whole, we entertain no doubt that the paramount intention of the parties was to create a present demise, and that the grantee was in the position of a tenant Purmananddas v. Dharsey 10 B. 101; Champaklatika v. Nafar Chandra Lal 13 C.L.J. 300 : 15 C.W.N. 536 : 8 Ind. Cas. 44.

(3.) The result is that this appeal is allowed, the decree of the Court below set aside and the case remitted to the Court of first instance in order that all the other issues may be decided. The costs of this appeal will abide the result.