NATHU LAL Vs. DAL CHAND

JUDGEMENT

(1.) The appellants in this appeal wore the plaintiffs in a suit for possession of certain agricultural plots and for mesne profits. It appears that one Durga Prasad had a decree against a zamindar of the name of Shiva Prasad. In execution proceedings the decree-holder on 19 February 1928, attached Shiva Prasad's haqqiyat in which the plots in suit were included. The then tenants of the plots in suit were paying a rent of Rs. 93. But they were ejected by Shiva Prasad on 23rd May 1926. On 22 July, 1926, Shiva Prasad gave a lease of these plots to the defendants for one year at a rent of Rs. 20 plus a nazrana of Rs. 500. On 28th January 1928, the property was sold at auction and was purchased by the plaintiffs. It was pleaded on behalf of the plaintiffs that the defendants were in wrongful possession of the plots in suit and were liable to be dispossessed and to pay mesne profits by way of damages. The defence was that the defendants had entered into a lawful contract of tenancy and that the relationship of landlord and tenant was existing between themselves and the plaintiffs. The Courts below have dismissed the suit. The lower appellate Court finds that Shiva Prasad leased the plots in suit to the defendants in the ordinary course of managing his zamindari,and that they are statutory tenants in the said plots. The latter finding is in accordance with the finding of the revenue Court to which the question, whether the relationship of landlord and tenant existed between the parties, had been referred. The first point which is taken before me in second appeal is that the lease is inadmissible by reason of the fact that it has not been registered. This plea does not appear to have been argued in either of the Courts below and even in the grounds of appeal before the lower appellate Court it was not specifically raised. But since it is a point of law, there is nothing to prevent it being raised for the first time in second appeal. Counsel for the plaintiff argues that the lease in suit is a lease "reserving a yearly rent" as contemplated by Clause (d), Section 17, Registration Act. I am unable to agree with this contention. It was held by a, Bench of the Bombay High Court in Jivraj Gopal V/s. Atmaram Dayaram (1890) 14 Bom. 319, that a lease on which a yearly rent is reserved as contemplated by Section 17, Clause (d), Registration Act, must be one which on a proper construction of it would create a tenancy from year to year. And in Seetharama Raju Vs. B. Pantulu (1894) 17 Mad. 275, it was held by the Madras High Court that a lease for one year only does not require to be registered under Clause (d), Section 17. The very words "reserving a yearly rent" negative the contention that a lease for one year only was contemplated under Clause (d), Section 17.

(2.) The other plea which is taken before me is that the lease was void under Section 64, Civil P.C. The lower appellate Court has found that the defendants are statutory tenants, and that their possession of the plots in suit was not tainted by fraud. These are findings of fact; which would ordinarily bind this Court in second appeal; but this Court has power to reverse a finding of fact if it appears to the Court to be based on reasoning which is manifestly wrong. The lower appellate Court has remarked as follows: Considering that the rent reserved by the lease was almost one-fifth of the rent paid by the former tenants, a strong presumption arises that Shiva Prasad executed the lease with fraudulent intent.

(3.) But the learned Judge goes to remark that in a sale deed executed by Mt. Misri, the widow of Shiva Prasad, on 2 January, 1928, there is a mention that the rent of these plots is Rs. 92 per annum and he says: I am therefore inclined to think that the rent of Rs. 20 per year shown in the lease was bogus and that the real rent for which the plots in dispute were let out to the defendants was Rs. 92 a year.