MATHEWSON Vs. RAM KANAI SINGH DEB

JUDGEMENT

(1.) The suit out of which this appeal arises was brought by the plaintiff, who is the proprietor of Pergunnah Barabhum in the District of Manbhum to recover khas possession of certain lands after cancellation of a "maurasi mocurrari lease (which for brevity's sake shall hereafter be referred to as mocurrari)" executed in favour of defendant No. 1 by the manager of the Encumbered Estates Act shortly before the estate was released to the plaintiff. The lease bears date the 26 May 1903, and is for 241 bighas odd of which 222 bighas odd is situated in mouzah Bara Bazar and 19 bighas odd in mouzah Machar and the annual rental for the same is Rs. 100. The circumstances under which this lease was executed are these: On the 27th February 1883, Raja Brojokishore Singh, the father of the plaintiff, in consideration of a loan of Rs. 60,000 advanced to him by R. Watson & Co., gave them an ijara lease for a period of 21 years at an annual rental of Rs. 20,000 commencing from the beginning of the year 1290 Fuslee (which corresponds to the 28 September 1882) and terminating with the end of the year 1310 Fuslee (which corresponds to the 9 September 1903) of a large portion of Pergunnah Barabhum situated on the north of a certain black line delineated in the survey map of Pergunnah, save and except certain parcels specified in the lease. Under that lease the lessor agreed, amongst other things, to grant to the lessees, their heirs, and representatives, during the currency of the lease, a putni lease of a portion of the Pergunnah situated on the south of the black line mentioned above with the exception of certain mouzahs, and the lease also contained the following covenant on the part of the lessor: "If out of the ijara mehal you require any land for the purpose of erecting any indigo factory or silk factory or excavating any bandh, or tank, or for construction of any kutchery house, I shall grant you a mourasi mocurrari pattah for it on proper rent." This covenant forms, as will be seen later, the root of the controversy between the parties. Soon after obtaining this lease, R. Watson & Co. proceeded to construct on that portion of the ijara mehal measuring about 200 bighas or thereabouts (which by reason of subsequent occupation by them, has borne the appellation of Shahebdanga), indigo vats, indigo factory building, a kutcha bungalow, amlas quarters, servants quarters, etc., and about the year 1886 erected a pucca bungalow. They also planted gardens and cultivated indigo on certain portions of the land. On the 8 March 1885, R. Watson & Co. obtained from the plaintiff's father a putni pattah in respect of the mouzahs of Pergunnah Barabhum situated south of the black line mentioned above in pursuance of the terms of the covenant in that behalf contained in the lease, at an annual rental of Rs. 4,500 and on payment of a bonus of Rs. 30,000. About four years later, i.e., in March 1889, Pergunnah Barabhum was taken over under the Chutia Nagpur Encumbered Estates Act for the purpose of liquidating the debts and liabilities with which that estate had become heavily burdened, and the Deputy Commissioner was appointed as manager under the Act. R. Watson & Co. having on the 25 August 1887 been incorporated as a limited Company under the name and style of R. Watson & Co., Limited, the former assigned all their rights and interests in Pergunnah Barabhum, including their rights under the ijara and the putni lease, to the latter Company by an Indenture bearing date, the 26 May 1890, R. Watson & Co., Ltd., again by a similar Indenture, dated 15 April 1896, re-assigned all its rights and interests to defendant No. 1, H. Mathewson. The plaintiff's father died on the 22 July, 1900. As the ijara lease was approaching its termination, H. Mathewson on the 25 June 1901 applied to the Deputy Commissioner, as manager under the Encumbered Estates Act for a mocurrari lease of the Shahebdanga lands in pursuance of the covenant in the lease, the terms whereof I have already quoted, and on the 25 May 1903 the Deputy Commissioner with the sanction of the Commissioner of the Chutia Nagpur Division executed in favour of H. Mathewson a mocurrari lease in respect of 241 bighas 6 cottas 15 chattaks of land at an annual rental of Rs. 100 after the Board of Revenue had previously, on the 20 April 1903, rejected the petition of the plaintiff objecting to the grant of the mocurrari lease. On the 1 October 1905, the estate was released from the operation of the Encumbered Estates Act and was restored to the plaintiff. The present suit was brought on the 24 May 1906 against defendant No. 1 alone, with regard to the 222 bighas out of the lands covered by the mocurrari lease and which are situated in mouzah Barra Bazar; the plaintiff in his plaint alleged that they formed part of the lands excepted from the ijara lease, that they were used for holding certain religious festivals thereon and that the defendant No. 1 by fraudulently misrepresenting to the Deputy Commissioner that they were included in the ijara lease and that under the terms of that lease they were entitled to get a mocurrari lease of these lands, had obtained such lease. As regards the remaining 19 bighas of land situated in mouzah Machar, the plaintiff alleged that they were not required for any of the purposes for which the leases under the covenant in the ijara lease were entitled to have a, mocurrari thereof. The defendant No. 1 in his written statement objected that the suit could not be maintained without a previous notice to quit, denied that the lands comprised in the mocurrari lease granted to him or any portion thereof, formed part of the lands excepted from the ijara lease, and averred that the Deputy Commissioner, the Commissioner of the Chutia Nagpur Division and the Board of Revenue after hearing the objections raised by the plaintiff to the giant of the mocurrari lease, and after a full and complete enquiry, and after satisfying themselves that these lands were outside the excepted lands, had granted a mocurrari lease, and he submitted that under the terms of the covenant in the ijara lease the lessees or their representatives were entitled to have a mocurrari lease of the lands in suit.

(2.) As the defendant No. 1 in his written statement stated that he had sold his rights in the property to the Midnapore Zamindari Company, Limited, the plaintiff applied on the 17th November 1906 for addition of the latter as a defendant. On that date the Court below added the Midnapore Zemindari Company, Limited, as defendant No. 2 in the suit and ordered that summons be issued. The defendant No. 2 entered appearance and filed a petition asking the Court to treat the written statement filed by defendant No. 1 as one filed on its behalf also.

(3.) The Court below has held, that it was not necessary for the plaintiff to serve on the defendant any notice to quit, that the lands comprised in the mocurrari lease formed part of the lands excepted from the ijara lease and that it included lands on which certain religious festivals are held and certain deities are temporarily placed and worshipped, that before granting the mocurrari, the Deputy Commissioner made no judicial enquiry as to whether the lands comprised in it had been excluded from the ijara, or whether there were, within the area demised, places where certain religious festivals were annually held, nor did he make any enquiry as to whether the purposes for which the mocurrari was given were those which were sanctioned by the clauses in the ijara lease, that the Deputy Commissioner was precluded from granting a mocurrari, as the claim of the, defendant No. 1 had not been notified as required by Section 7 of the Encumbered Estates Act (VI of 1876); that even if the Deputy Commissioner had authority to grant a mocurrari lease in accordance with the terms of the covenant;, he could not specifically perform the covenant and execute the mocurrari on behalf of the plaintiff without his consent and concurrence and that in doing so, he acted ultra vires. The Court below also held that the covenant in pursuance of which the mocurrari had been executed was void for want of consideration; that it was vague and uncertain that if specific performance thereof had been sought it would have been refused on the ground of laches and hardship; that the defendant No. 1 was not the assignee of the covenantee and, therefore, could not have claimed specific performance; that if a suit for specific performance had been brought, it would have been held barred by limitation; that the annual rental for which the mocurrari was granted, was below the prevailing rate and that the defendant No. 1 in obtaining this mocurrari had been guilty of fraud and misrepresentation. But as the building had been erected and other improvements had been made during the period of the ijara lease (and probably on the faith of the aforesaid clause), the Court below was of opinion that the defendant was entitled to get compensation in respect thereof and it assessed such compensation at the sum of Rs. 5,000. The Court below accordingly set aside the mocurrari lease and gave a decree to the plaintiff for possession of the lands in suit subject to payment by him to the defendants of a sum of Rs. 5,000.