SHIBA PRASAD ROY CHOWDHURY Vs. SAMARBNDRA NATH BOSE

JUDGEMENT

(1.) This is an appeal by the plaintiff to recover rent in respect of certain lands in the Sunderbunds held under a lease by the defendants. The plaintiff claims as the landlord. The case made out is this: The plaintiff s predecessor obtained a lease from the Government for 99 years. That predecessor was named McDougall. McDougall s interest pissed to the plaintiff s father and his co-sharers. Owing to certain amicable partition proceedings that took place between the members of the plaintiff s family, the Sunderbunds property had fallen to the lot of the plaintiff. The plaintiff s title is not in contest. Prior to this amicable partition, certain portion of the land which was covered by the lease from the Government to McDougall was on the 31st July 1901 sublet by the plaintiff s mother and the other co-sharers belonging to the plaintiff s family in permanent lease to Jiwan Krishna Ghose and others, the area leased out being 4,000 bighas. Then followed a resumption by the Government of a certain portion of the land and this land was settled with the plaintiff on the 13th April 1903. It is not disputed that that was within the powers of the Government. Then the original defendant No. 1 purchased the property comprised in and demised by the under-lease of the 31st July 1901 and the defendant No. 1 entered into a direct obligation with his landlord undertaking to perform the obligation of reclaiming the land, which was a term not only contained in the lease as held from the Government but also in the sub-lease as held from the plaintiff s predecessors. Then, troubles seem to have arisen with the Government on the ground that the reclamation was not taking place in accordance with the terms of the lease and the Government served certain notices and threatened to re-enter. The plaintiff s case is that certain correspondence then ensued between him and the defendants Nos. 1 and 2 and owing to certain arrangements entered into, the defendants Nos. 1 and 2 agreed with the plaintiff that, if the plaintiff would approach the Government and obtain a fresh lease in place of the original lease which the Government claimed to have forfeited, the rent payable by the defendants Nos. 1 and 2 under the under lease should be enhanced to a corresponding amount to that which the plaintiff had become liable to pay to the Government, and in pursuance of that, the plaintiff says that he did, in fact, approach the Government and received from them a fresh lease on more onerous terms than those on which the land was held originally by the plaintiff. The plaintiff, therefore, sued in this suit to recover rent, not as provided for by the registered document which was granted on the 31st July 1901, but at the rate as varied by the correspondence that had taken place between the plaintiff and the defendants Nos. 1 and 2. The defendant No. 3 has purchased the interest of the defendant No. 1 and whether he had notice of this arrangement contained in the correspondence has not been determined in this suit. No issue was raised on that point and the case must be determined solely on the materials that were before the learned Judge of the Court below. The view that the learned Judge of the Court below took was this:---This was a suit for rent, an ordinary money suit to recover the money agreed to be paid under a registered deed. That being so, the learned Judge said that he was prohibited by the law from allowing the terms of the registered instrument to be contradicted or varied by any unregistered writing and this correspondence which the plaintiff wished to give in evidence was not, under the terms of the law, admissible for the purpose of contradicting or varying the terms of the registered lease on the ground that the correspondence had not been registered. Stated broadly, that proposition is accurate. Dr. Mitter has attempted to escape from the view taken by the learned Subordinate Judge on the ground that these sums were provided for by the original lease. I am quite clear that they were not. This arrangement could never have been within the contemplation of the parties when they executed the lease of the 3lst July 1901. Moreover I am clear that the covenant contained in the third Clause of the kabuliyat (Exhibit 3) does not refer to a variation of the fixed rent but it corresponds with what in England is known as the covenant to pay the outgoings, namely, the rates, taxes, assessments, impositions and the other outgoings payable in respect of the premises and imposed by the Government or some public authority. It does not apply to a sum payable between the parties to the lease in respect of the land. That amount has already been dealt with by the covenant. If that is so, then the money is not payable under the lease, and, not being payable, this correspondence cannot be looked at in this suit for the purpose of seeing whether the plaintiff is, in fact, entitled to have the terms of the lease varied so as to entitle him to any larger sum than he has been awarded by the Judge under the registered lease. The plaintiff s Vakil says that it is a hard case on the ground that, in fact, his client has performed his portion of the bargain contained in this correspondence by approaching the Government and obtaining a new lease at an increased rental and that, unless he had done so at the request of the defendants Nos. 1 and 2, they would have lost their interest in the large sum of money that they had spent in clearing and improving the property. But no such case has been set up in this suit. Any case that the plaintiff has for altering or rectifying the terms of the original lease in a properly constituted suit on the ground that it is a binding agreement and ought to be enforced in a Court of Equity cannot be gone into in this case, There are many issues which are not to be decided in this case including, of course, the position of the defendant No. 3, as to whether or not he had notice of this arrangement between the plaintiff and the defendants Nos. 1 and 2. Any right that the plaintiff has got to have that matter enforced, he can enforce in a properly constituted suit. All that we can say in this case is that it is an ordinary case brought to recover rent for particular years and the contract regulating the rights of the parties is in a registered document, and that registered document must bind and govern those rights until varied by another registered document or by a judicial decision. That disposes of the main point.

(2.) Then, a long---I should not say long but considerable---argument has been addressed to us with reference to the learned Judge not having allowed interest in respect of the arrears of rent. The claim made in the plaint as regards this is shown in the schedule---a claim for damages. The plaintiff has not told us what damages he suffered by reason of being kept out of this rent for a comparatively short period, because he took the rent under protest, and it is difficult to see that a gentleman in the position of the plaintiff could have suffered any damage in having received the sum under protest. He had the money in his pocket and I suppose that the only damage that he had suffered was that he had to keep that money in hard rupees so that if his protest was upheld, he would be in a position to repay that money. This is with regard to the rent of the years 1317 and 1318. With regard to the rent of the years 1319 and 1320, the money was deposited under Section 61 of the Bengal Tenancy Act. A point has been raised as to whether the durgantidars were persons authorised to make the deposit. I am inclined to think that they were under their lease. The oral evidence in this case like other evidence in many cases in India is not very strong, but the documentary evidence such as appears seems to show that the defendants Nos. 1 and 2 when they let out this property in durganti, made a direction to the durgantidars to keep down and pay the rent payable to the plaintiff and that direction apparently, according to the terms of the Kabuliyats, had been acted on by the durgantidars. There is ample evidence to show that it has been acted on, although Dr. Mitter says that the chittas do not show that payment was made on behalf of the principals of the durgantidars. One of them I think clearly does show. But, after all, this is a case for damages. No particulars of the damage have been given and the learned Judge of the Court below did not see fit to exercise his discretion to give damages. What are the grounds shown to us on which we should say that the learned Subordinate Judge was wrong in the exercise of his discretion in declining to award to the plaintiff any damages? That the plaintiff has really suffered any damage in money or value seems to me impossible. The only damage he has suffered is that the money was paid into Court by the durgantidars, who are not tenants within the meaning of Section 61 of the Bengal Tenancy Act. Of course, the plaintiff may have his own views as to who is the person described as tenant in Sections 61 and 62. But obviously this is not a matter that is capable of being appraised in money value. The plaintiff has given no particulars of the damage suffered by him. We have no materials on which we can set aside the exercise by the learned Subordinate Judge of the Primary Court of his discretion declining to award to the plaintiff any damage with respect to the rent due for the years 1319 and 1320. I see no reason in this case to interfere, with the judgment of the learned Judge of the Primary Court. Any rights that the plaintiff has, he must enforce in a proper suit to rectify the registered lease under which the present defendants Nos. 2 and 3 now hold the property. The present appeal fails and must be dismissed with costs. The defendant No. 3, who alone has been represented in this Court save and except the minors represented by the Deputy Registrar, will be entitled to the costs. We assess the hearing fee at one hundred rupees. Newbould, J.

(3.) I agree.