KEDAR NATH Vs. SHANKAR LAL

JUDGEMENT

(1.) The learned District Judge decided the contentions which we are now considering upon one point. He wrote in his judgment: The main point for decision is one of law and may be stated in this form- -"Is a registered kabuliat executed by the tenant and accepted by the landlord sufficient to create a tenancy?

(2.) He decided that point only.

(3.) The facts were as follows:--The plaintiff, who is here the appellant, is the owner of a shop with a shed attached which he leased to a certain Kundan Lal. Kundan Lal executed a kabuliat in plaintiff appellant's favour, dated the 19 of March, 1913, agreeing to occupy these premises on a monthly rental until 1918. It is not clear whether the plaintiff had executed a lease for this period of five years in favour of Kundan Lal. It is of no consequence whether he did or did not execute a lease, for it is admitted that he took no exception to Kundan Lal as a tenant during those five years. His relations with Kundan Lal appear to have been amicable during that period. When that lease came to an end, it is an admitted fact that Kundan Lal executed a registered kabuliat, dated the 10 of April, 1918, by which he agreed to occupy the same premises as tenant for a further period of eleven years on an annual rental of Rs. 200. Kundan Lal continued to occupy the premises and the plaintiff made no objection, as far as we can gather, to his occupation. Kunda n Lal died in 1918. After his death, the plaintiff instituted the suit out of which the present appeal arises against the sons of the deceased Kundan Lal, who had continued to occupy the premises, for possession of the premises, for an amount for use and occupation for the period between their father's death and the date of the suit calculated at the rate at which their father had been paying rent, and for damages at the same rate up to the period that the plaintiff might obtain possession. The learned District Judge did not go into the other points raised between the parties. He did not even decide upon the evidence whether the plaintiff had or had not accepted the kabuliat. He took the view that without considering other evidence, the plaintiff must be considered to have accepted the kabuliat on the wording of the plaint and on the wording of a notice issued by the plaintiff's pleader to Kundan Lal's sons dated the 14 of April, 1919. We do not consider that on the wording of the plaint and the wording of the notice a conclusion can be drawn that the plaintiff accepted the kabuliat of the 10 of April, 1918. The plaint affords no authority for a finding other than that the plaintiff had permitted Kundan Lal to hold over as a tenant from year to year after the first period of five years had come to an end. It does not follow from this that he would extend the same towards Kundan Lal's sons after the death of Kundan Lal. The wording of the notice, in no way, supports the suggestion that the plaintiff accepted or admitted the kabuliat, and so far there has been no finding on the evidence as to whether, and, if so, how far the plaintiff misled the defendants by his action in permitting Kundan Lal to hold on after the period of five years had come to an end, or, in other words, as to the validity of the plea of estoppel which has been raised by the defendants. The point as to what the plaintiff actually did do or omitted to do and the effect of his acts and omissions upon the merits of the case has not been decided by a finding of fact and, as will be seen from the subsequent portion of this decision, we propose to leave this question, in addition to the other questions which so far have not been decided, to the decision of the learned District Judge's successor.