Arunkumar Patra vs Ashutosh Banerji

P.N. Mookerjee, J.—The Appellant''s father Sambhu Charan Patra held the suit land under the Plaintiff-Respondent as an under-raiyat under a registered lease for nine years (vide, kabuliyat, dated Asdr 2, 1345 B.S., corresponding to June 17, 1938) expiring with the end of Jaistha, 1354 B.S. On the expiry of the said lease, he held over, with his landlord''s consent and, thereafter, on Pons 29, 1354 B.S., he executed an istafanaha (Ex. 2) in favour of the Plaintiff-landlord, agreeing to surrender the land at the end of Jaistha 1355 B.S. He also agreed to pay damages at the rate of Rs. 2 per diem for the period of overstay in case he failed to vacate the suit land in terms of the istafanama.

Sambhu Charan overstayed and thereupon the landlord recovered an ex parte decree for damages against him in a Small Cause Court Suit (No. 581 of 1948) brought for the purpose. The decree was made at the stipulated rate of Rs. 2 per diem and an application (Misc. Case No. 178 of 1948 under Order IX, Rule 13 of the Code of Civil Procedure) for setting it aside was eventually "dropped" and dismissed for non-prosecution on the death of the applicant Sambhu Charan in or about April, 1949. Thereafter, on July 29, 1949, the present suit was brought for eviction of the Defendant who is Sambhu Charan''s son and who has admittedly been continuing in occupation of the suit land since his father''s death. In this suit there was also a prayer for recovery of damages at the rate of Rs. 2 per diem from Sraban 25, 1355 B.S., to the end of Asdr 1356, B.S.

The defences material for my present purpose were:

(i) that the unregistered istafanama (Ex. 2) was invalid in law to terminate the suit tenancy which had been created by the registered kabuliyat (Ex. 1);

(ii) that the said istafanama, stipulating delivery of possession at a subsequent date, was invalid as a deed of surrender and has not, therefore, the effect of terminating the Defendant''s tenancy; and

(iii) that the suit was time-barred under Article 1(a) of sch. III of the Bengal Tenancy Act.

The claim for damages was also challenged as excessive and penal. The defences to the Plaintiff''s claim for ejectment have been overruled by both the courts below and the Plaintiff has been given a decree for ejectment. On the claim for damages, the learned munsif''s finding was that the rate of Rs. 2 per diem, claimed in the plaint on the strength of the stipulation in Ex. 2, was penal and relief was given to the Defendant u/s 74 of the Indian Contract Act by reducing it to reasonable compensation at the rate of Rs. 20 per annum and a lump decree for Rs. 20 was made by the learned munsif for the period claimed in the suit.

The decision of the learned munsif was accepted by the Plaintiff-landlord but the Defendant took an appeal from it to the District Judge''s Court which was eventually heard and dismissed by the learned subordinate judge. The Defendant has now come up in Second Appeal.

The three defences to the Plaintiff''s claim for ejectment which I have set out above have been urged before me in support of this appeal, but, in my opinion, none of them can be accepted. The decision of the courts below, overruling the said defences, is correct and ought to be affirmed for reasons which I shall presently give below.

It is clear from what I have stated above that the Defendant''s father Sambhu Charan held over with the landlord''s consent after the expiry of his registered lease. It was thus a tenancy by holding over. This tenancy was not the original tenancy created by the kabuliyat (Ex. 1) but it was a new tenancy which arose on the expiry thereof. It was thus a tenancy "otherwise than by a registered instrument", as explained by Rankin, C.J., in the Bench decision of this Court, reported in the case of Gopal Chandra Rudra and Anr. v. Khater Karikar and Ors. (1929) 33 C.W.N. 1207. I hold, therefore, that the suit tenancy was not one under a registered instrument and so the istafanama (Ex. 2) cannot be said to be invalid on the ground of non-registration. The first point, urged in support of the appeal, therefore, fails and it is overruled.

It is clear also on the aixthority of Shaikh Kubir Munshi v. Baikuntha Chandra Shaha and Ors. (1910) 15 C.W.N. 680, that provision for delivery of possession on a future date would not make the istafanama ineffective as a deed of surrender. The surrender is in effect relinquishment and it does not become inoperative simply because it is to take effect at a future or subsequent date (vide, Sheikh Kubir Munshi v. Baikunta Chandra Saha and Ors.) already cited. In such cases, absence of delivery of possession will not invalidate the surrender or make it inoperative or ineffective in law. The tenancy is, by agreement, surrendered or relinquished, with effect from the future date, mentioned in the document, and, in such a case, no inconsistency arises by reason of the tenant''s retention of possession after the date of the document or declaration of surrender as in the case of surrender in present, that is, surrender with immediate effect. The case of Sarat Chandra Sinha v. Nritya Gopal Biswas and Ors. (1910) 13 C.L.J. 284, is distinguishable (vide, Poran Matia v. Indra Seni ILR (1919) Cal. 129) and it would not help the Appellant. The second point, urged in support of this appeal, also, therefore, fails.

The plea of special limitation under Article 1(a) of sch. III of the Bengal Tenancy Act must also be overruled. That article applies where the term of the lease has expired and ejectment of a non-occupancy rdiyat or an under-rdiyat is sought on that ground. It obviously contemplates a lease for a term and not a lease by "holding over". In any event, it does not apply where ejectment is sought not on the ground of expiration of the term of the lease but on the ground of surrender or relinquishment. The case of Jotiram Khan v. Jonaki Nath Ghose (1914) 20 C.W.N. 258, contains nothing to the contrary. In that case a non-occupancy rdiyat holding over after the expiry of the term of his registered lease was sought to be ejected long beyond six months of such expiration. On the facts, stated there, it was clearly the case of a tenancy by "holding over" which tenancy had not been terminated according to law. It was argued, however, that the tenancy was really under the original registered lease, the term whereof had expired and, on that basis, it was contended that the tenancy had terminated and the landlord was entitled to possession. In answer to this argument their Lordships pointed out that, if it was correct that the tenancy was under the registered lease and had terminated on the expiry of its term and ejectment was to be made on that ground, Article 1(a) of sch. III of the Bengal Tenancy Act would at once be attracted and it would bar the landlord''s right to claim possession, the suit having been instituted long beyond six months from the expiration of the said registered lease. Jotiram Khan v. Janaki Nath Ghosh''s case (1914) 20 C.W.N. 258, therefore, cannot apply to this case and aid the Appellant in his plea of special limitation. Here, clearly, ejectment has been sought on the ground of a surrender or relinquishment of the disputed tenancy. I, accordingly, reject also the point of special limitation, urged by the Appellant''s learned advocate.

In the result, this appeal must fail and it is dismissed with costs.

Leave under Clause 15 of the Letters Patent is asked for and it is refused.