KARIM BAKSHA Vs. ABDUL JABBAR MIAJI

JUDGEMENT

(1.) The plaintiff brought the two suits out of which these two appeals arise to eject the defendants from two holdings. His allegation was that he had granted an under-raiyati to Makram Ali, the predecessor of the defendants, and that on Makram Ali s death he wanted to take khas possession, but the defendants who were Makram Ali s heirs had not given possession to him. The defendants replied that the plaintiff had executed, two pattahs, one in respect of each holding, conferring upon Makram Ali permanent and heritable rights. They also said that the plaintiff, although he described himself as a raiyat, was really a tenure-holder.

(2.) The first Court found that the plaintiff was, as a matter of fact a raiyat and this was not disputed in the loser Appellate Court, The Courts below further found that the leases granted by the plaintiff to Makram Ali were permanent and heritable leases and they held that the leases had been registered in contravention of the provisions of Section 85(2) of the Tenancy Act and that they were not admissible in evidence, consequently the plaintiff s suits were decreed in both the lower Courts.

(3.) It is now contended on behalf of the defendants that the leases ought to have behalf regarded only as leases from year to year which might properly have been registered under Section 85(2). The translations of the lease have been placed before us and we find that they make provision for the holdings passing from generation to generation and for the holdings being sold; and the only stipulation with regard to ejectment is in these terms: "if you do reduce the rent by raising any objection then you will be liable to Joe ejected from the land without notice." At the beginning and the end of the documents, however, occurs the word san ba san; and we are asked to hold that that word should modify our view of the nature of the agreement. It appears to me that it is much more important to consider the other parts of the document. The terms about heritability and transferability are terms which generally occur in permanent leases and I think the proper view to take of these pattahs is that they were intended to create a permanent interest, and I may add that the defendants fought the oases in the lower Courts on the footing that they had acquired a permanent interest. That being so, I think the provisions of Section 85(2) come in and the documents ought not to have been registered. It is urged, however, that the Plaintiff as lessor cannot raise this question. Numerous authorities have bean cited to us, upon this matter of the proper construction to be put upon Section 85(2). It is not necessary to refer to more than a few of them, for they have all recently been dealt with in a judgment delivered by Mr. Justice Beachoroft in the case of Chandi Charan Nath v. Somla Bibi 44 Ind. Cas. 254 : 22 C.W.N. 179 at p. 182 : 28 C.L.J. 91. The particular cases to which I refer are Jarip Khan v. Durfa Bewa 15 Ind. Cas. 476 : 17 C.W.N. 59 : 16 C.L.J. 144, Telam Pramanik v. Adu Shaikh 18 Ind. Cas. 791 : 17 C.W.N. 468 and Mohim Chandra Dey v. Baidya Nath 29 Ind. Cas. 879 : 21 C.L.J. 478. The facts of those cases are generally Similar to those of the present case and I think, following the principles adopted in those cases, that these appeals should be dismissed.