AHAMADAR RAHAMAN CHAUDHURI Vs. JAMINIRANJAN BARUA

JUDGEMENT

(1.) This appeal has arisen out of a suit which was instituted by the plaintiff for declaration of title and recovery of possession in respect of a certain quantity of land. There were four defendants in the suit. Defendant 4, in December 1919, had purchased a taluk at a rent sale. Out of the lands of that taluk, 6 kanis were let out by defendant 4, in March 1921, to the plaintiff on receipt of premium of Rs. 300. The plaintiff's case is that, shortly after the execution of the lease, he went to take possession of the property, but defendants 1, 2 and 3 offered resistance to him and the consequence was that he did not get possession. Of these 6 kanis of land, one of the plots, namely, No. 937, was in the possession of defendant 1 and the rest of the land was in the possession of defendants 2 and 3. The plaintiff, thereafter, in June 1924, instituted the present suit. As already stated, the suit was primarily lodged with a prayer for recovery of possession on declaration of title. But, in the alternative, there was a prayer for refund of the premium, namely, Rs. 300, which had been paid by the plaintiff to defendant. The trial Court found that plot 937 was in the possession of defendant 1 under a title which could not be challenged by defendant 4 and that, therefore, that was a plot to which defendant 4 was not entitled to at all and so was one in respect of which the plaintiff could not get any decree. Leaving that plot out altogether, the trial Court made a decree in plaintiff's favour in respect of the remainder of the land, declaring the plaintiff's right thereto and directing that he would get khas possession of the same. The trial Court also decreed was lat as against defendants 2 and 3 to the extent of Rs. 100. From this decision of the trial Court, three appeals were preferred, one by the plaintiff, another by defendant 2 and the third one by defendant 4. As the result of these appeals, the learned District Judge has passed a decree in the plaintiff's favour, ordering defendant 4 to refund to the plaintiff the sum of Rs. 319, made up of Rs. 300, the premium paid on account of the lease, and Rs. 19, the amount of rent paid by the plaintiff on the same account, with interest at 12 per cent per annum from the date of the lease up to the date of suit and future interest at 6 per cent. Defendant 4 has then preferred the present appeal.

(2.) The judgment then stated that one of the several contentions urged on behalf of the appellant in support of the appeal was that the plaintiff was not entitled to a refund of the premium. The terms of the lease relied upon were then quoted as under. The terms relied upon for the purpose aforesaid, are two in number. One of them is to be found in para. 2 of the lease : translated it runs in these words: I shall not be competent to raise any objection on the ground of drought, inundation, etc., and possession or dispossession of any kind.

(3.) The other passage in the lease, on which reliance has been placed, is to be found in para. 5 thereof, and runs in these words: I shall not claim any dags, etc., which may have been included in this lease, but which are owned or possessed by anybody else.