KANTI CHANDRA GHOSE Vs. BROJENDRA MOHAN GOSWAMI

JUDGEMENT

(1.) Plaintiffs-appellants agreed to let a piece of garden land to defendant 1 (respondent) for a period of nine years for the making of bricks. A written agreement was executed but not registered. Defendant 1 entered on the land, cleared the jungle and began making bricks. After he had used the land for 15 months, the superior landlord of his lessors sued for a permanent injunction to prevent the use of the land as a brickfield. He obtained a temporary injunction and it was in force for some 15 months and then the zemindar came to terms with the lessors, and recognized their right to use the land as they liked, and the temporary injunction was withdrawn. The plaintiffs in the meantime had filed this suit against defendant 1 for rent of the land and for selami. They claimed rent at the rate of Rs. 20 a bigha and selami at Rs. 100 a bigha for 8 bighas 18 cottas of land. The defence was that by the terms of the written agreement the rent was only Rs. 15 a bigha and the area only 4 1/2 bighas. It was admitted that selami of Rs. 100 a bigha was to be paid, but it was contended that it was not payable until the lessors should execute a formal lease.

(2.) The written agreement was admitted in evidence by the first Court and marked Ex. B, though it was not a registered document. The learned Munsif held that it was an agreement to grant a lease and that the selami agreed on was not payable because the lease had not been executed and that the rent due had been paid. So he dismissed the suit. The plaintiff appealed and contended that by the doctrine of part-performance the defendant was liable to pay the selami agreed on since he was enjoying the land. But the learned Subordinate Judge held that the agreement, being unregistered was not admissible in evidence, that oral evidence of the agreement was inadmissible because the contract had been reduced to writing, and that there was, therefore, no evidence on which to found the doctrine of part-performance. He therefore dismissed the appeal.

(3.) In second appeal to this Court plaintiff cites a number of rulings : Harinath V/s. Promotho Nath A.1.R. 1921 Cal. 127 ; Satyendra Nath V/s. Anil Chandra [1908] 14 C.W.N. 65 ; Upendra V/s. Umes [1910] 12 C.L.J. 25; Sarat Charan V/s. Shyam Chand [1912] 39 Cal. 663 ; Ardesir Bejonji V/s. Sirdar Ali [1908] 33 Cal. 610 to show that an agreement which, for want of registration is inadmissible to prove a lease may be admissible to prove an agreement which does not affect the land, for example, an agreement to execute a lease on the fulfilment of certain conditions. Respondents on the other hand cite Sanjib Chandra V/s. Santosh A.I.R. 1922 Cal. 436, Hemanta Kumari V/s. Midnapur Zamindari Co. A.I.R. 1919 P.C. 79; ElahiBaksh v. Hukum Baksh [1913] 19 C.L.J. 464; Ghampaklatika V/s. Nafar Chandra [1910] 15 C.W.N. 536 to show that an agreement coupled with delivery of present possession is in fact a lease and cannot be proved unless it is registered. The question we have to decide is therefore whether the document marked Ex. B, ought under Section 17, Registration Act, to have been registered, and if so, whether it could be admitted under Section 49(c), Registration Act, as evidence of a transaction not affecting the land.