RAMCHANDRA AGARWALA Vs. SYAMESWARI DASYA

JUDGEMENT

(1.) This appeal arises out of a suit in ejectment. The mother of the present plaintiff bad a house in Gouripur Bazar in the District of Goalpara and in 1901 the defendants became her tenant at the rental of Rs. 90 a year and bad a shop in the premises. In 1910 the house having been found to be dilapidabed the parties met and it was arranged that the lease should continue at Rs. 150 a year after repairs but as the lady had no money the defendants would advance the money for putting the house in order without interest and that the money would be recovered by a deduction of Rs. 75 a year from the present rent of Rs. 150 a year. There was a further term that until the money due on the repairs was repaid the defendants would not be ejected. Shortly after this the mother of the plaintiff who was an old lady of 90 years of age died and has been succeeded by her daughter the present plaintiff. In 1920 the present suit was brought to eject the defendants from the house. The defendants set up a document (Ex. C.) under which they stated they were not liable to be ejected until the whole debt had been paid off by payment of Rs. 75 a year. The Munsiff however found that this deed not having been registered, the defendants were not protected as they were only tenants-at-will and that as notice lad been served, the tenancy had been terminated by that notice and so he gave a decree to the plaintiff to eject the defendants in payment of the balance due to the extent of Rs. 875 and allowed them a certain time within which to remove the additional houses. Against this order the defendants appealed. On the appeal coming up before the Subordinate Judge the learned pleader appearing for the appellant conceded that the position of his clients was that of the tenants-at-will and that they were liable to be ejected but in the circumstances of the case the amount of compensation granted by the Court below was inadequate. The learned Subordinate Judge, therefore only dealt with the question of compensation and came to the conclusion that Rs. 875 allowed to the defendants was the proper amount.

(2.) In appeal before us it is first urged that this admission by the pleader for the defendants did not bar the point as to the validity or otherwise of the lease or whether the defendants are liable to be ejected at all being taken in second appeal. There is no doubt that this is so. I only refer to the case of the Secretary of State for India V/s. Sibaprosad Jana [1918] 27 C.L.J 447, where it was stated following the decision of the Judicial Committee in the oases of Tagor v. Tagor [1872] 18 W.R 359 and Beni Pershad V/s. Dudhnath [1900] 27 Cal. 156, that an erroneous admission by a counsel on a point of law is of no effect and does not preclude a party from claiming his legal rights in the appellate Court. The question of the amount of compensation is not argued before us in second appeal The only question taken before us is that the document (Ex. C.) though not registered gave them a right under which they could not be ejected and anyhow it did not create a present demise and was only an agreement and not a lease: and that anyhow the principle laid down in the case of Walsh V/s. Lonsdale [1882] 21 Ch. D. 9, us to part performance will apply to this case. The question however in this case is whether as a matter of fact it was in consequence of this document as a lease that the defendants came into possession of this property. An examination of the document in my mind leaves no doubt in this respect. The document, began by describing the deed to be an agreement for letting out Basa Bari and a tin ghar and it says as follows at the beginning "you having come to me and Rs. 150 only having been fixed as the annual jama of the said Basa Bari and the tin ghar, I let out the same to you for carrying on your trade and commerce therein." Then follows a clause in the document as to the way in which the expenses for repairs would be met. It then Jays down that after the accounts have been made and the amount of money expended therefor totalled, there would be a fresh deed. It also says that on repayment of the debt the plaintiff will be able to make any new settlement of the land according to her wish. In the third, paragraph there are certain other condition such as, for the maintenance of boundaries, payment of damages for injuries to the ghar not caused by accident, keeping the house in repair (if the lessor does not make the repair the lessee will make it and deduct the expenses thereof from the rent reserved). This clearly shows that this document purports to be a lease: and if it was a lease for a limited number of years as the pleader for the appellant argues for 20 years, 1t required to be properly stamped and registered. This has not been done. In my opinion therefore the Munsiff's decision, which was affirmed by the Subordinate Judge, that the defendants were no more than tenants-at-will is correct. I would, therefore, dismiss the appeal with costs. In doing so, however, I will order that the defendants be given three months time from the date of the decree of this Court within which to remove the additional house and give up the property on receipt of compensation. The rent due to the plaintiff up to the date of giving up of possession will be set off against the compensation. Suhrawardy, J.

(3.) I agree.