JOHN GURNEY WAKEFIELD Vs. KUMAR RANI SAYEEDA KHATOON

JUDGEMENT

(1.) The defendant in 1923 obtained a farming lease from the Maharaj Kumar of Tikari of seven villages for a term of 20 years. On 7 March 1925, the Maharaj Kumar executed a mukarrari deed, which made the lease permanent in respect of four villages, and granted certain other villages to the defendant. At the same time he executed a deed of gift whereby the proprietary right in the other three villages of the lease of 1923 was transferred to the plaintiff. The plaintiff in 1930 demanded rent from the defendant on account of the farming lease of the three villages at the rate of Rupees 773-3-6 a year, which was duly paid though the plaintiff's claim for interest was not satisfied. In 1931 the plaintiff instituted the suit out of which this appeal arises, describing the defendant as a trespasser, and claiming compensation by way of mesne profits or in the alternative rent at the rate of Rs. 912 a year. The defendant contested the suit denying that he was a trespasser and claiming that he held as a tenant under the lease of 1923 which had been recognized by the plaintiff.

(2.) At the trial of the suit the question arose of whether the performance by the defendant of his part of the contract of 1923 had the effect of putting him into the position which he would have enjoyed if he had obtained a regular lease. The Subordinate Judge, considering himself bound by the decision of the Judicial Committee of the Privy Council in Ariff V/s. Jadunath Majumdar , found that the defendant could base no claim to be a lessee on the strength of the unregistered document of 1923. He did not consider the question of whether the provisions of Section 53-A, T.P. Act, enacted by Act 20 of 1929 would govern this contract; nor did he consider the effect of the acceptance of rent by the plaintiff in recognition of the contract. He found that the defendant was a trespasser and he assessed compensation by way of mesne profits at Rupees 1,500 a year. The defendant has appealed from that decision.

(3.) In the trial Court the defendant had taken the objection that he was entitled to complete suspension of rent, owing to the fact that he had been forcibly ejected from his tenure by the plaintiff, but the point was not pressed before the Subordinate Judge, and although it is mentioned in the memorandum of appeal, it must be treated for practical purposes as abandoned by the appellant, who by his memorandum of appeal admits liability for three years of arrears of rent at the rate of Rs. 773 odd. Arguments have been addressed from both parties to this Court at some length, on the question of whether the provisions of Section 53-A, T.P. Act, would apply to the agreement of 4 August 1923. On the whole, I think that the provisions of this section would apply to this contract, and that the effect of Section 63 of Act 20 of 1929 is only to remove from the operation of the new Section 53-A those irregular part-performed contracts which on 1 April 1930 already formed the subject of pending litigation; but in the form which this appeal has ultimately taken, this question, strictly speaking, does not arise. It is manifest, in the first place, that the occupation of the defendant-appellant during the years in suit cannot be treated as that of a trespasser liable to pay damages or mesne profits. Rent had been demanded from him up to the end of 1335 Fs. which was duly paid. A demand was made for rent for the years 1336 and 1337 which was not satisfied. It is clear that he was a tenant, but it is not necessary for the purposes of this appeal to decide what may have been the terms of his tenancy.