ANANTA LAL Vs. BIBHUTI BHUSAN

JUDGEMENT

(1.) This is an application in revision on behalf of a plaintiff whose suit for recovery on rent has been dismissed by the Small Cause Court Judge in the circumstances about to be narrated. The principal questions for consideration are whether the relationship of landlord and tenant has been established between the parties and whether the suit was cognizable by the revenue Court only. The case of the plaintiff is that he instituted title Suit No. 43 of 1937 in the Court of the Munsif of Raghunathpur for recovery on khas possession of a tank recorded in plots Nos. 2196 and 2197 of garabad khata No. 6 of village Barrah. The defendant alleged that he was in possession of the admitted tenancy lands including the tank on the foot of a registered patta dated 18 February 1934, by which he was liable to pay only mukarrari rent of Rs. 3 per annum which could not be enhanced and, therefore, he resisted that suit. The plaintiff had also claimed in that suit the alternative relief that he was entitled to the fishes over and above the annual rent if it is held that the tank was a part of the land which was leased with the defendant. The parties came to terms which were embodied in a petition of compromise, which, after stating the facts which I have narrated above, stated that "it is settled in this way that as long as the plaintiff would possess the share of mouza Barrah the defendant and hia heirs would pay from 1343 B.S., one maund and ten soars of fish the price of which is Rs. 12 over and above the mokarari rentof Rs. 3. But if the plaintiff or his heirs transfer the said share of mouza by sale or gift or for some other reason his or his heir's interest is extinguished, the defendant with his heirs shall not be bound to pay the aforesaid fish and the fish or its price will not be regarded as the rent of the properties mentioned in the above mentioned patta.

(2.) The terms of this compromise were embodied in the decree by which the suit was disposed of; but neither the compromise petition nor the decree was registered. The plaintiff then instituted suit No. 162 of 1942 giving rise to this revision in the Court of the Munsif of Raghunathpur exercising Small Cause Court powers for the recovery of price of five maunds of fish at the rate of Rs. 12-8-0 per year together with interest at the rate of 12 per cent, per annum, that is to say, he is claiming price of fish for four years. The defence to the action was that the tank formed part of the defendant's agricultural tenancy for which he was liable to pay a consolidated sum of Rs. 3 per annum, and that the compromise was nothing more than a device to obtain an enhancement of rent of the tenancy and, therefore, was not enforceable in law and also on the ground that it was not registered.

(3.) The learned Small Cause Court Judge held that the term of the compromise by which the defendant agreed to deliver or pay for the fish was merely a personal covenant by a tenant and could not be enforced as it was hit by the provisions of Section 63, Chota Nagpur Tenancy Act. He also held that even if the stipulation is considered to be a lawful praedial condition not prohibited by Section 63, Chota Nagpur Tenancy Act, the remedy of the plaintiff was in a revenue Court and not in a civil Court. Accordingly he dismissed the suit. In support of the application Mr. R.S. Chatterji argued that the learned Subordinate Judge was wrong in holding that the agreement to deliver or pay for the price of fish was a praedial condition, because the agreement between the parties was a bona fide settlement of a dispute which was the subject of Title Suit No. 43 of 1937.