SECRETARY OF STATE Vs. SARAT CHANDRA SEN GUPTA

JUDGEMENT

(1.) This appeal relates to a plot of building land in Daltonganj held by the defendant from the plaintiff at a rent of Rs. 26-2. The Judge in the Court below has granted a decree to the plaintiff for ejectment, but has proceeded to order that the defendant should execute a fresh lease at an annual rent of Rs. 38-2-6 within two months in default of which the plaintiff was to have possession. I have already dealt with the question of jurisdiction of the Judge to make a bargain between the parties in First Appeal No. 27 of 1933 Secy. of State V/s. Rajendra Prasad reported in AIR 1937 Pat 391, and I propose to make no further observation in this case with regard to that matter excepting to repeat that the Judge had no jurisdiction to make such an order. The only question that remains therefore is whether the plaintiff was entitled to eject the defendant.

(2.) By way of preliminary objection Mr. Sushil Madhab Mullick, who appears on behalf of the defendant contended that the appeal was incompetent. It is said that it appears from the decision of the Court below that, even succeeding on the question of ejectment the plaintiff was not desirous of ejecting the defendant so long as he paid a fair rent to be fixed by the Court; and it is said that by letter the defendant's father agreed to execute a lease at the rent so fixed. This is tantamount (so it is contended) to a compromise of the action in which event the appeal does not lie. From a perusal of the judgment, however, it is quite clear that not only the Court but the plaintiff and the defendant were under the impression that the Court had jurisdiction to settle rent for the parties. In this connection it appears that the Judge in trying these cases had in mind Rule 28, Clause (8), of the Bihar & Orissa Government Estates Manual of Instructions to Government Officers, with regard to suits of this kind in which they are ordered, in dealing with khas mahal properties, to claim ejectment, and, in the alternative, the settlement of a fair rent. This is wholly misleading and has misled the Judge in the Court below as he appears to be of the opinion that this is binding on the Court. The parties and the Court, as I have said, were under the impression that the Court had jurisdiction and the matter is referred to in these terms: It has been suggested by both the parties that a fair rent may be fixed by the Court and an opportunity be given to the defendant by way of equitable relief against forfeiture to take a lease from the plaintiff with a stipulation to pay the said rent.

(3.) There appears to be a confusion of thought in this matter. There was no question here of forfeiting a lease; it was a question of the term having expired by a notice to quit in which event there could be no question of a relief against forfeiture. It is under this misapprehension that the Court has acted, and in my view it was not a question of the compromise of the action but the exercise of an assumed jurisdiction. In my judgment there is no substance in the contention that the appeal is not competent as the plaintiff is entitled to appeal if in fact the Judge purported to exercise jurisdiction in giving the alternative form of relief.