MT DHANPATTI Vs. BADRI SINGH

JUDGEMENT

(1.) This is a Letters Patent appeal by the defendants against the judgment of a learned Single Judge of this Court dismissing their appeal. The defendants have lost their case throughout. The case began as a suit in the Court of the Assistant Collector for enhancement of rent. The plaint set out that the plaintiffs are the recorded zamindars of the whole village of mauza Alupur and that the defendants are exproprietary tenants in the village of an area of 21.71 acres consisting of 64 plots; that the former rent of the land was Rs. 47-1-8 and enhancement is asked. The defence was that the relation of landlord and tenant did not exist between the parties, and that Bandhan Singh, husband of Mt. Dhanpatti, defendant 1, and his brother sold their zamindari property under different sale deeds, but the sir plots, grove, house, pond and pasture were excluded from the sale deeds and the vendors remained in possession and occupation of these items of property as absolute owners and that the vendors remained in possession of the sir plots as "haqiat mutafarriqa" and continued to pay the revenue according to their proportionate shares entered in the khewat, and that the entry in the village papers was wrong, meaning apparently the entry of the defendants in the khatauni as exproprietary tenants of the numbers in suit. It is to be noted that the defendants are not entered in the khewat for "haqiat mutafariqa" or in any capacity whatever. The Revenue Court referred an issue to the civil Court as to whether the defendants have proprietary rights in the land in question, and the Munsif decided that they have not, and the Revenue Court therefore decreed enhancement from Rs. 40-7-6 to Rupees 50-9-6. The defendants appealed on the ground that they were holders of the proprietary rights, in the sir land, and the lower appellate Court on an interpretation of the sale deeds in question held that this was not so and that the defendants were exproprietary tenants of the land in dispute. The gale deeds in question are as follows: On 19 December 1879, Bandhan Singh, the husband of defendant 1, sold a two-annas share for Rs. 2,000 in favour of Batuk Dayal, and also on the same day sold a one-anna share it favour of Ramsarup for Rs. 1,000. In each of these sale deeds it was stated that the sale was made: alawa araziat sir wo bagh wo makanat mashunah khud wo pokhri wo charagah maweshian.

(2.) There is no clear finding as to what entry was made in the village papers subsequent to 1879 but presumably Bandhan Singh and his brother remained entered as holders of sir in the khatauni as they had still one anna zamindari share in the village. On 16 February 1890, Bandhan Singh and his brother executed a sale deed of their remaining one-anna share in favour of Hira Lal, the predecessor of the plaintiffs. In this sale deed it was stated: Jis qadar arazi sir ek anna hissa mauza Alupur zila Benares Pargana Kara mobaiya me ham muqir ka waqai hai us par ham muqir bataur asaini saqetul milhiatke qabiz rahenge aur lagan uske mutabiq lagan mundarjah jamabandi ke jo us waqt arazi sir par qaem hai hamesha dia karenge.

(3.) After this the plaintiffs rely on an entry of 2 July, 1894, in regard to a contested case for correction of jamabandi against Bandhan Singh in which there was an entry of exproprietary tenancy. Plaintiffs; further rely on a khatauni which is produced of the year 1307 Fasli, corresponding to 1899-1900 which shows Bandhan Singh as exproprietary tenant of the numbers in suit. On 31 March 1914, Bandhan Singh executed a deed of relinquishment in which he set out that he was the exproprietary tenant of 26.49 acnes at a rent of Rs. 58 and that he relinquished in favour of Hifa Lal 4.17 acres of this exproprietary tenancy, the rent of which was Rs. 10-6-0. The numbers were not mentioned in this deed of relinquishment. The situation therefore was that the entries were of the defendants as exproprietary tenants. It is admitted that the defendants were making payments to the plaintiffs predecessor to the extent of Rs. 47-1-8 per annum. The defendants alleged that this payment was made as their corresponding share of land revenue and the plaintiffs alleged that it was made as exproprietary tenancy rent. The learned Single Judge of this Court considered that the effect of the first two sale deeds of 1879 was to exempt the proprietary interests of Bandhan Singh and his brother in the sir plots and that the sale deed of 16 February 1890 by which the sir plots were not exempted transferred not only the one anna share sold but also whatever proprietary rights the vendors had in all sir numbers. It will thus be seen that this view was materially different from the view of the lower appellate Court, which was that the first two sale deeds transferred the proprietary rights in the two annas and one anna sold and the rights which remained and were reserved in the sir were only the sir rights, that is the right to hold the land in cultivation as sir, and that all those sir rights then appertained to the one anna share which remained with Bandhan Singh, and his brother. On this view the sale deed of the one anna share on 16 February 1890 naturally transferred all the proprietary rights which were in the vendors and only the exproprietary rights remained in the vendors. Some argument was made on the strength of North Estern Railway V/s. Hastings (1900) A.C. 260, that subsequent conduct of the parties would not be admissible in the present case. In that case the plaintiff brought a suit on an indenture between the defendant company and the plaintiff and claimed that under the terms of that indenture the defendant company was bound to make certain payments. The defendant company desired to prove that as a matter of fact for 40 years they had not been making those particular pay merits. Evidence to prove that was excluded as the Court held that the terms of the indenture were clear and unambiguous. The claim therefore is made that in the present case the sale deeds in question are clear and unambiguous and evidence of subsequent conduct should be excluded. In the present case the plaintiffs do not sue on the deed in question as the deed does not set out in what numbers the exproprietary tenancy arose but the plaintiffs sue the defendants as their tenants, and the issue is whether the defendants are tenants or proprietors. On that issue it is relevant for the plaintiffs to prove that the defendants have been paying them rent and that they are entered in the village papers as exproprietary tenants. The cases are not at all parallel and it is not clear that the principle of the ruling would apply in the present case. The next question is whether the lower appellate Court is correct in its interpretation of these deeds. The question is not free from difficulty because the language used by the deeds was not clear. It is no doubt open to a proprietor in a mahal to make a sale of a one anna or a two annas share and to exempt his proprietary interest in certain plots in the village. To do so he might specify those plots and say "Sell a two anna share, but I except plots numbers so and so and so and so." It is however also possible for a proprietor to sell a two anna share and retain a certain share in the village and then make a provision that all his sir plots should remain in his possession as sir. In that case it is not quite so easy to see what precise language he should use and the expression "with the exception of sit land" may well be taken to mean that that was his intention. Some difficulty no doubt arises from the fact that along with the sir lands he mentions other matters such as the house and the grove and the pond and in one case the pasture. He may clearly have meant that in regard to the grove and the house and the pond his proprietary interest in these matters would not pass. Again he may well have meant merely that the grove would remain as a zamindar's grove in his possession. We do not know in the present case whether the grove was or was not his sir land. As regards the house, he may have merely intended that he should retain it as a proprietor's house and he may have been indifferent as to whether the purchaser would or would not have an undivided share in the site.