JANAKINATH ROY Vs. MOHENDRA NARAIN ROY CHAUDHURY

JUDGEMENT

(1.) The plaintiffs who are the purchasers of a patni taluk in execution of a mortgage decree, allege that the defendants vendors held a tenure under patni and created by a dowl kabuliyat bearing the date 19 Aswin 1249. According to the plaintiff's case the tenure is non- permanent and non-transferable. The defendant having purchased in 1330, the plaintiffs sue to eject him. The defence is that the tenure is permanent and transferable. The learned Additional District Judge on appeal has agreed with the trial Court in holding that the dowl kabuliyat created a non-permanent and non-transferable tenure, but he has found that as the result of a compromise arrived at in a rent suit of 1911 the tenure in suit has become permanent and transferable. He has, therefore, reversed the decree of the trial Court and dismissed the suit. The plaintiffs now come in a second appeal.

(2.) The first point taken on behalf of the appellants is that the learned Additional District Judge is wrong in holding that the vakatatnama Exh. J, can be treated as secondary evidence of the solenama in the aforesaid rent suit of 1911. It appears that that was a suit for rent at the rate of Rs. 269. The predecessors of the defendant claimed abatement of rent on the ground of diminution of area and suspension of rent on the ground of dispossession. The suit was ultimately decreed on compromise by which the rent was reduced to Rs. 207 odd. The decree and solenama are not now available. But the defendant relies on a vakalatnama which is marked Ex. J. This document contains certain terms which are now put forward as the terms of the compromise. As the original record of the rent suit has been destroyed the learned District Judge considers Ex. J. to be secondary evidence of the solenama. This is obviously against the terms of Section 63, Evidence Act, and the learned advocate for the respondent admits that Ex. J. is not admissible as secondary evidence. Thus the position is that as regards solenama neither primary nor secondary evidence is available. The only other evidence is the register of suits Ex. N. which merely contains an entry to the effect that the suit was decreed on compromise. For the respondent, it is contended, that there is the deposition of one Upendra Mohan Ghosh Chaudhury who is defendant's witness 3 and who was one of the defendants in the rent suit of 1911. He was, however, no party to the vakalatnama. The learned advocate for the respondent argues that the vakalatnama is at least admissible as admission on the part of the plaintiff's predecessors. But admission of what? It cannot be admission of the terms of the compromise which has not yet come into existence and there the matter ends. Thus it seems to me that there is no evidence to prove the terms of the solenama, on which the defence case of permanency and transferability rests. This point therefore must be decided in favour of the plaintiffs appellants.

(3.) Another point that may be considered is that, conceding that the vakalatnama is evidence of the terms of the compromise, did those terms really mean that the tenure was being converted into a permanent and transferable one? The learned trial Court has treated the matter as follows: Exhibit J shows among their things that the contract was that though the term of the kabuliyat had expired and the rent and the lands had diminished, still in other respects the terms of the kabuliyat wore to remain intact and that thenceforward the tenants defendants were to hold the lands, and the rent be meadi i.e., without term by succession. The defendant's learned pleader wants to have the words "warishen krame and bameadi" construed to mean a permanent tenancy. That is not so. These words are clear indication to show that the jama was not permanent and that the tenancy was a tenancy at will to be extinguished by the landlord after one year's notice, if necessary. If the tenure wore indeed permanent one there was nothing to prevent the parties from having it so described by clear and unambiguous terms. That this had not been done shows that it is not such a tenure.