SRINIWAS HUKUM SINGH Vs. RAJKISHORE SAHAY

JUDGEMENT

(1.) In this appeal by the plaintiff the question is whether he can eject the defendant from 7 cottahs in plots Nos. 422 and 423 in village Saldega of which defendant No. 1 was permitted to take possession in the expectation of the grant of a permanent lease. The defence was that there was an agreement capable of being enforced for the grant of a permanent lease and the defendant having been admitted in pursuance of that agreement, plaintiff cannot eject him. The Munsif decreed the suit; but oh appeal the Subordinate Judge has dismissed it following the decision of the Calcutta High Court in Arif V/s. Jadu Nath Mazumdar 112 Ind. Cas. 865 : A.I.R. 1929 Cal. 101 : 55 C. 109 : 33 C.W.N. 333. In appeal it is pointed out that the above decison of the Calcutta High Court was carried on in appeal to the Privy Council where it was reversed in Arif V/s. Jadunath Mazumdar Bahadur 131 Ind. Cas. 762 : A.I.R. 1931 P.C. 79 : 58 I.A. 91 : 58 C. 1235 : 60 M.L.J. 538 : 33 L.W. 586 : 53 C.L.J. 359 : 35 C.W.N. 550 : 15 R.D. 354 : 8 O.W.N. 739 : (1931) M.W.N. 480 : Ind. Rul. (1931) P.C. 154 : 33 Bom. L.R. 913 (P.C.). It is contended that there was not any agreement between the parties which defendant No. 1 at the time of suit was entitled to enforce, the plaintiff having fulfilled his part of the agreement by tendering a kabuliyat to defendant No. 1 for execution which defendant No. 1 refused to execute. Defendant's case was that the lease tendered to him contained a condition which he was entitled to repudiate, namely, an undertaking not to transfer or sublet the land without the consent of the landlord and on every such transfer to pay a fee to the landlord. In dealing with this part of the case, I shall have to refer to the correspondence because the Subordinate Judge in his judgment has given wrong dates of several of the letters and petitions referred to.

(2.) The estate of the plaintiff was under management of the Wards and Encumbered Estates Department. Negotiations began by an application, Ex-A, from defendant No. 1 to the Manager, Wards and Encumbered Estates of Ranchi, for the grant in permanency of one bigha of land in Simdega for holding a shop for the convenience of Government Officials. The application is dated April 22, 1921. The applicant was aware that it was not the practice of the estate to grant permanent leases; but he asked for this to be done as a special case. It was recommended by the Sub-Divisional Officer. Defendant No. 1 on May 16, 1921, made a fresh application Ex. A(1) to the General Manager asking for a grant of 7 cotthas in plot No. 422 or plot No. 423 in Saldega which is an adjoining village to Simdega. Oil October 20, 1924, the General Manager addressed the Deputy Commissioner in his letter, Ex. 1, for sanction of a permanent lease of seven cotthas in Saldega for a building to open a shop for the convenience of Government Officers in the Sub-Division. The rent proposed was eight annas a year and he suggested that a premium at the rate of Rs. 400 per acre be taken. On October 30, 1924 by Ex. B, the Commissioner gave his sanction to the permanent lease of a plot of land in Saldega of which defendant No. 1 was informed by the Manager by letter, Ex. C, dated November 19, 1924. He asked the defendant to deposit Rs. 50 on account of nazarana and Rs. 16 as fee of the Government Pleader for preparing the draft lease and for other expenses by December 7, 1921. Defendant No. 1 did not make the deposit within the time. On July 11, 1925, he made an application, Ex. 2, to the Sub-Divisional Officer expressing his wish to get the lease and asking for a reduction in the demand of Rs. 16 as Government-Pleader's fee on the ground of poverty. He also asked the manager to get the land measured so that he might know how much he would have to pay. He expressed his willingness to deposit the amount after measurement and stated: I am ready to execute any bond, but I am too poor to pay for a draft. The General Manager be kindly requested to send me copy of any lease for similar settlements, which I hope must be forth coming in his office, and I will very gladly register it in the local registry office.

(3.) This letter is a clear assent on the part of the defendant to take the lease on such terms as are ordinarily made, in such settlements. On July 31, 1925, the manager wrote to the Sub-Divisional Officer, Ex. 1(a), to inform the defendant that a grant of seven cotthas has been sanctioned and that Rs. 50 should be paid as a deposit and Rs. 16 as Government Pleader's fee for a draft, no old lease being available as a specimen. There followed, it would seem, some haggling as a result of which the amount demanded for preparing the draft was reduced to Rs, 8 and the sums of Rs. 50 and Rs. 8 were deposited by chalans Exs. E and E(l) dated November 4, 1925. On November 5, 1925, the Sub-Divisional Officer by letter Ex. D informed the Deputy Commissioner of the making of these deposits and asked that the manager be directed to get the land measured and. demarcated to avoid encroachment. The Sub-Divisional Officer still thought it necessary that there should be a shop. On January 6, 1926, the manager wrote a letter Ex. D-1 to the District Engineer to get the land measured and demarcated. Oh the same date the manager wrote Ex. 1(b) to the Deputy Commissioner pointing out that there was no form in the Wards Manual and suggesting that the form in the Government Estates Manual might be used subject to necessary modification. This proposal was approved by the Deputy. Commissioner in his letter Ex. 1(c) dated February 24, 1929. On April 11, 1926, defendant No. 1 wrote to the Sub-Divisional Officer Ex. 2(a) pointing out that he had deposited the sum of Rs. 58 and asking that the lease might be executed. The General Manager wrote a letter Ex. G(2) on April 30 enclosing a draft lease and asking the Sub-Divisional Officer to get the acceptance of the defendant to its terms. The draft is Ex. F. Defendant No. 1, on August 26,1926, in his letter Ex. 2(c), raised an objection to the condition in Paragraph 2 of the draft lease which runs as follows: Except with the previous sanction of the lessor in writing and on payment of a fee equal to 25,Per cent, of the yearly rental (provided that no such fee shall be less than Rs. 1 or more than Rs. 100) the lessee shall not transfer, assign, sublet or part with the possession of the said demised land and premises or any part thereof. In the case of succession by inheritance no fee as aforesaid shall be payable; the person succeeding shall apply forthwith to the lessor for mutation of names and such application shall bear the court-fee stamp prescribed by law.