UDAYA PRATAPA SINGH Vs. GOURACHENDRA DYANO SUMANTO

JUDGEMENT

(1.) These are appeals from the decrees of the Subordinate Judge of Berhampore dated 21st December 1931 in A.S. Nos. 74, 77 and 122 of 1929. These decrees in effect dismissed two of the three suits instituted by the Zamindar of Sherugada and in the third suit the Subordinate Judge's decree allowed only a very small portion of the claim and dismissed the rest of it. The trial Court had passed decrees in all the three suits in favour of the plaintiff. It may be mentioned in this connexion that the original plaintiff died before the appeals were preferred to the Subordinate Judge and his legal representatives were brought on record in the lower appellate Court. The suits were in substance for recovery of rent reserved under certain leases or in the alternative for recovery of damages for use and occupation. The leases were of the kind described as mustajari leases and the amount of Tent due thereunder is referred to as the mustajari Gutta.

(2.) According to the practice followed in the zamindari, the right to recover the rent due to the Zamindar by the ryots, namely rajabhagam, was sold by auction and it is stated that the defendants are the persons whose bids at such auctions were accepted. The bidding at such auction and the acceptance of the bids are alleged to constitute the mustajari leases in question. The trial Court was of opinion that the alleged plaint leases are not really leases but only ordinary contracts and did not therefore require registration. It found however that the contracts were really for three years and that the defendants were dispossessed after one year even in the absence of any reservation of the power to revoke. That Court therefore found that the plaintiff himself having backed out of the contract had no right to expect performance from the other side, and that the plaintiff in filing the suit for recovery of damages is blowing hot and cold in the same breath. It found accordingly that the plaintiff had forfeited his right to recover damages, but, curiously enough, awarded damages, the reason given being that the defendants were also equally repudiating the contract and pleading that the contract had never been given effect to. In the result, instead of disallowing the plaintiff's claim to damages it reduced it by a comparatively small amount. The decree passed in O.S. No. 137 of 1928 was for Rs. 1,900, the decree passed in Order Section No. 138 of 1928 was for over Rs. 2,100 and the decree passed in the third suit was for a little over Rupees 1,000. In appeal however the learned Subordinate Judge found that the leases alleged in the plaint are leases but that they are not valid or enforceable because the law required them to be registered, the subject of the lease being immoveable property.

(3.) As regards the alternative claim to damages for use and occupation, he was of opinion that one of the conditions which must be fulfilled before a claim for damages for use and occupation could be permitted was that the defendant must have been in possession intending to occupy it as a tenant and that in the absence of a registered lease, the lessee could have had no right to recover the rent payable by the occupancy tenants, and it was impossible to say that a lessee In the case of a mustajari lease is even in constructive possession of the holdings. A further argument based on the doctrine of part performance was also dismissed as untenable. Another alternative argument based on the plaintiff's right to sue for accounts on the basis of an agency was also dismissed on the ground that the suits had not been framed on that basis and there had been no trial on those lines and that no application had been made for amendment of the plaint on that footing. The result was, as stated above, the decrees in two of the suits were set aside altogether and the decree amount in the third suit was reduced considerably, only that portion of the claim being allowed which was covered by a registered lease from the predecessor of the plaintiff.