NAGENDRA CHANDRA NAG Vs. PURNA CHANDRA GUPTA

JUDGEMENT

(1.) This is an appeal under Section 15, Letters Patent, by one of the plaintiffs in a suit which was brought for confirmation of possession on declaration of title of plaintiffs 9 annas 10 gandas share in Mouza Haria and others and for declaration that there is no jibka tenure under the name of Ram Narayan Chakraburty under them and that the Record of Rights showing the existence of such a tenure is incorrect. The Courts below and the learned Judge of this Court have confirmed the proprietary title of the plaintiffs to the 9 annas 10 gandas share in the said mouzahs, but have dismissed the plaintiffs suit in so far as they seek for a declaration that the jibka tenure is not in existence and that the Record of Rights showing the existence of a jibka tenure as a permanent rent-free tenure is wrong. It is against this portion of the decree dismissing the plaintiffs suit that the present appeal has been directed and is brought against the decision of Jack, J., under Section 15, Letters Patent. The defendants in their defence set forth a compromise decree in a suit of the year 1880 and they have founded their claim to this tenure on that compromise decree. They also raised the questions of adverse possession and limitation. The Courts below have concurrently found that the plaintiffs have not been in possession within 12 years of the suit. It is also significant that the final publication of the Record of Rights took place on 18 April 1916 and the present suit in which this appeal under the Letters Patent arises was not brought till very near the time when 12 years expired, i.e., on 3 April 1928.

(2.) Several contentions have been raised before us with reference to the decision of Jack, J. It is said that the solenama in the compromise decree in the suit of 1880 was not admissible in evidence, seeing that by the solenama a lease was purported to be created as the decree was not registered and as no registered lease was forthcoming under the provision of Section 17, Registration Act, the solenama was not admissible in evidence. Jack, J. in one part of his judgment was inclined to the opinion that the solenama on its proper construction was really intended to operate as a lease in favour of the plaintiffs (plaintiffs in the suit of 1830 and the defendants in the present suit) predecessors and that therefore it required registration and not being registered was not admissible in evidence as a lease. But after recording this opinion, the learned Judge proceeded to say that although this document does not come under the definition of lease in the Registration Act so as to bring it also under Clause (d), Sub-section (1), Section 17 of the Act, he was of opinion that this document was admissible in evidence without registration under Section 17(1)(b), Registration Act, and in support of this view reliance was placed on the authority of the decision in Sarat Chandra Das V/s. Sarojini Rudraja 1924 Cal 135.

(3.) We have read the solenama and we are of opinion that the document as created in favour of the predecessors-in-interest of the defendants in the present suit was a lease. The word lease has been defined in the Transfer of Property Act of 1882, but the solenama was prior to that date and no definition of the word lease is found in the Registration Act. We have therefore to fall back upon what was understood to be the meaning of lease prior to the enactment of the Transfer of Property Act. According to Stroud's Judicial Dictionary, if the owner of land, consents by deed that another person shall occupy the land for a certain time, that is a lease; and reference is made to the decision of Bayley, J., in Germains V/s. William, 2 B & C 220. We are therefore of opinion that the decree created a lease and the solenama operated as a present demise in favour of the defendants, and not being registered is not admissible in evidence. This contention must therefore succeed.