Damodar Prasad and Others vs Masoodan Singh and Others

Kulwant Sahay, J.—These are appeals by the plaintiffs against the decision of the Subordinate Judge of Monghyr, dismissing his two suits, one of which was a suit for rent and the other a suit in ejectment.

It appears that one Khawaja Gauhar Ali Khan gave a lease of certain properties to the plaintiffs under a sadhaua pataua deed dated the 20th August 1912. The properties given in lease were certain villages appertaining to mahal Islamnagar in the district of Gaya and 1 dhur of land in mahalla Guhiapokhar otherwise known as Ghasiarmahalla in the town of Monghyr. The amount advanced as zarpeshgi was Rs. 43,000 and the term of the lease was for 18 years from 1320 to 1337 F.S. during which period the whole of the zarpeshgi money with interest was to be paid off from the usufruct of the lease-hold property. On the 16th July 1916 the plaintiffs gave a sublease of the properties under a katkena deed to Babu Masoodan Singh who is defendant 1 in these suits and to his brother Khooblal Singh and his nephew Ajodhya Prasad Singh who were all members of a joint family. Khooblal Singh and Ajodhya Prasad Singh are defendants second party in the rent suit out of which appeal No. 156 arises. This sublease was on a rental of Rs. 10,100 for a term of 14 years from 1324 to 1337. The sublessees executed a separate security bond to secure the due and regular payment of the rental mortgaging their immovable property.

In 1921 there was a separation amongst the members of the joint family of the sublessees; and Khooblal Singh and Ajodhya Singh, it appears, were not willing to retain the sublease. They appear to have approached the plaintiffs, lessors, and an arrangement was come to whereby the sublessees were to execute a deed of surrender and the lessors were to accept the surrender and to release the sublessees from the security bond, and after such surrender, Masoodan Singh, defendant 1, was alone to take a fresh sublease and to execute a fresh security bond in respect of the properties which were separately allotted to him by the partition amongst the members of the joint family. In accordance with this arrangement several documents were executed on the 12th June 1921. One was a deed of surrender executed by all the sublessees in favour of the lessors; the other was a putta executed by the plaintiffs of the lease-hold property in favour of defendant 1, Masoodan Singh, alone; the third was a kabuliyat or counterpart of the putta executed by Masoodan Singh in favour of the lessors, viz. the present plaintiffs. This new sublease to defendant 1 was for a term of 9 years from 1329 to 1337 P.S. and the annual rental fixed was Rs. 10,095 which was payable in four kists. It would be necessary to examine the terms of this sublease in detail when considering the various issues raised in the suit. The next document executed on that date was a zamanatnama or a security bond. This was executed by defendant 1, Masoodan Singh, for himself and as the guardian of his two minor sons, by Shivanandan Prasad Singh, the adult son of Masoodan Singh, and by Mt. Jajia Debi, the wife of Masoodan Singh. By this deed certain properties were mortgaged as security for the due payment of the rent under the sublease.

The plaintiffs'' case is that the rents have not been regularly paid and that a sum of Rs. 20,000 and odd is due on account of arrears of rent, principal with interest, and a sum of Rs. 3,000 is due to him on account of the defendants'' withholding certain papers which were made over to, them at the time of the execution of the sublease and a sum of Rs. 75 is due to him as damages on account of the defendants not supplying the plaintiffs with copies of the jamabandi and other papers which under the terms of the sublease they were bound to supply every year. The plaintiffs, therefore, brought suit No. 16 of 1924 out of which appeal No. 156 of 1925 arises for recovery of the arrears of rent and damages and they prayed for sale of the properties covered by the security bond of the 12th June 1921. One of the terms contained in the sublease was that if the sublessee failed to pay all the consecutive instalments of any year and no payment was made for any year then the lessors will be competent to dispossess the sublessee. The plaintiffs allege that a forfeiture has been incurred on account of non-payment of rent for more than one year and they accordingly instituted suit No. 63 of 1924 out of which appeal No. 159 of 1925 arises, for ejectment of the defendants.

The plea of the defendants was that the lease-hold properties were situated in the district of Graya and the Subordinate Judge of Monghyr in whose Court the suits were instituted, had no jurisdiction to entertain the suits; that the registration of the sublease at Monghyr was invalid, inasmuch as the lease-hold properties were situated beyond the jurisdiction of the Sub-Registrar of Monghyr, and the one dhur of land in the town of Monghyr which was included in the lease was a fictitious property which had no existence and which it was not intended to give in lease, and, that, therefore, it was a fraud on the law of registration, and the registration of the document at Monghyr was invalid. In the rent suit the defendants denied liability for damage for non-delivery of the papers and they raised a plea of payment of the rents. In the ejectment suit the defendants pleaded that full rents for the years in suit were paid and that no forfeiture had been incurred and that the clause as regards forfeiture was a penal clause to ensure regular payment and that it could not be enforced in law.

The learned Subordinate Judge raised various issues. Issues 3 and (3)(a) run thus:

(3) Whether the one dhur of land alleged to have been given in katkina to the defendant is a fictitious property inserted in the documents (kabuliyat and patta) for getting them registered in Monghyr District. If so, is the registration of the said documents a fraud on registration law and are the said documents invalid?

(a) Has this Court jurisdiction to try these two suits?

Besides these two issues other issues were raised as regards the plea of payment and other pleas raised by the defendants. The learned Subordinate Judge at first tried only issues 3 and 3(a) set out above and he found that the lease granted by Gauhar Ali Khan to the plaintiffs as well as the sublease granted by the plaintiffs to the defendants were invalid inasmuch as the registration thereof was invalid in law. He further found that the one dhur of land in the town of Monghyr was not intended to be given in lease or in the sublease and that the rest of the properties were situated beyond his jurisdiction and he accordingly held that he had no jurisdiction to entertain the suits. He, therefore, dismissed the suits without trying the other issues raised in the suits.

The plaintiffs preferred the present appeals. When the appeals came up for hearing we were of opinion that it was necessary to have the findings of the Subordinate Judge on all the issues raised in the suits. Accordingly by our order dated the 17th January 1927 we remanded the cases to the learned Subordinate Judge under the provisions of Order 41, Rule 25, Civil P.C., to record his decision on all the issues. The learned Subordinate Judge has now recorded his decision on all the issues and has returned his findings to this Court to which objections have been taken by both sides and the appeals have now been heard on all the points raised by the parties.

The questions for determination in these appeals are: (1) Whether the sublease was invalid as not registered according to law; (2) Whether the Subordinate Judge of Monghyr had jurisdiction to entertain the suit; (3) Whether the plea of payment set up by the defendants is correct; and (4) whether the plaintiffs are entitled to eject the defendants.

It may be noticed at the outset that the defendants impugn the validity not only of their own sublease but also of the lease granted by Khawaja Gauhar to the plaintiffs. This they cannot be allowed to do. A lessee cannot deny the title of his lessor. The defendants having taken a sublease from the plaintiffs it does not lie in their mouth to say that the plaintiffs had no title to the property as lessor. The validity of the lease of Gauhar Ali to the plaintiffs is not, therefore, a proper question which can be considered in the present suits. The heirs of Khwaja Gauhar Ali are not on the record, and any decision on the point will not affect them. The question as regards the validity of the registration of the lease granted by Gauhar Ali to the plaintiffs can, therefore, be only incidentally referred to.

The properties given in lease by Khwaja Gauhar Ali to the plaintiffs under the document (Ex. 1) dated the 20th August 1912, consist of six villages appertaining to mahal Islamnagar bearing tauzi No. 4069 in the district of Gaya and 1 dhur of land in mahalla Guhiapokhar otherwise known as Ghasiar Mahalla, pargana, thana and district Monghyr. It is this 1 dhur of land in Monghyr which gave jurisdiction to the sub-registrar of Monghyr to register the deed. In the schedule attached to the lease this 1 dhur of land is described thus: One dhur of land in mahalla Guhiapokhar maroof Ghasiar Mahalla, one of the quarters of Monghyr police station, sub-registry office and district Monghyr, a Government estate, Survey No. 4633, Municipal No. 216-homestead land, the boundaries of which are as under:

East--Lane and then house of Nawab Kunjra.

West--Khas land.

North--Khas compound and then public road.

South--Khas land.

In the body of the kabuliyat executed by the defendant Masoodan Singh on the 12th June 1921 (Ex. 3) the properties described are exactly in the same terms as in the lease of the plaintiffs themselves, but there is no schedule attached to the kabuliyat and the boundaries and the municipal numbers etc., are not given The patta executed by the plaintiffs (Ex. F 1) is exactly in the same terms as the kabuliat (Ex. 3). Therefore, the description of the properties must be taken to be the same as that contained in the lease granted by Khwaja Gauhar Ali to the plaintiffs.

The learned Subordinate Judge has found that this one dhur of land was not a fictitious property, but was a property actually in existence. He has, however, held that it was not intended that this one dhur of land was to form the subject of the lease or of the sublease, and that the inclusion of this one dhur of land in the documents was merely with the object of giving jurisdiction to the sub-registrar of Monghyr to register the deed, and the registration had been procured on committing a fraud on the law of registration. (The judgment then discussed the evidence and holding that the one dhur of land belonged to Khwaja Gauhar Ali, and that there was no reason to suppose that the parties did not intend that this one dhur of land should not be included in the lease proceeded.) I am of opinion that there was no fraud practised by either party and this one dhur of land was intentionally included with the object that it should form a part of the lease so that the documents creating the lease might be registered at Monghyr.

In Mt. Jasoda Kuar Vs. Janak Missir and Others, it was held by a Division Bench of this Court that where a vendor in order to enable him to register a sale-deed relating to certain property in the office of a particular sub-registrar obtains a conveyance in his own name of certain property situated within the jurisdiction of that sub-registrar and then includes it in the sale-deed executed by him, the registration of the sale-deed by that particular sub-registrar, in the absence of any intention to defraud, is perfectly valid although it may be discovered subsequently that the person who convoyed the property to the executant had no title. The present case is stronger than this case. In the present case the title of Gauhar Ali is proved and the property was not a fictitious property. The same view was taken in Ram Sumran Prasad Vs. Govind Das, .

The case of Baij Nath Tewari v. Sheo Sahoy Bhagu [1891] 18 Cal. 556, has no application to the facts of the present case. That case was decided with reference to its own facts. There it was found that the description of the property given in the deed was erroneous and insufficient for the purposes of identification, and, that, therefore, the registration of the document was invalid. In the present case it is found that there is no difficulty in identifying the property.

In Harendra Lal Roy Chowdhuri v. Haridasi Debi AIR 1914 P.C. 67, one of the parcels of land included in the mortgage which gave jurisdiction to the Registrar of Calcutta to register the deed was described as premises No. 25, Guru Das Street, Jorasanko in the town of Calcutta. It was found that there was no such property in existence. At the trial it was sought to be made out that there was a mistake in the description of that parcel of land and that the words "Ashutosh Dey''s Lane" should be substituted for "Guru Das Street." Their Lordships of the Privy Council observed that it was proved that there was not and had never been any such property as No. 25, Guru Das Street in Calcutta and that the defendants had proved that the property lying within the metes and bounds set out in parcel 28 and which was the premises in Ashutosh Dey''s Lane and which the plaintiffs sought to make out was the parcel intended to be mortgaged, did not belong to the mortgagor at the date of the mortgage and that it had further been proved that the mortgagor had not, at the date of the mortgage and never had, any interest in the property within those metes and bounds. Under the circumstances it was held that the registration of the deed was invalid. Their Lordships, however, further proceeded to observe as follows:

It follows, therefore, that No. 25, Guru Das Street, which is the parcel No. 28, was a non-existing property. It was no doubt open to the plaintiff to prove that there was a clerical or other error in the description of the property, and that in fact an existing property situate in Calcutta was intended by both parties to be mortgaged and to be described in parcel No. 28. But there is not a particle of evidence that such was the case.

Had the premises No. 25, Ashutosh Dey Lane, belonged to the mortgagor at the date of the mortgage the decision of their Lordships would have been otherwise. In the present case it has been found that both the Municipal holding No. 215 and the Municipal holding No. 230 did belong to Khwaja Gauhar Ali at the date of the lease. Evidence has been given in the present case that the description of the property was erroneous in so far as the Municipal holding No. and the Survey No. were concerned, but that their description of the land by boundaries was correct. The case of Harendra Lal Roy Choudhuri v. Haridasi Debi AIR 1914 P.C. 67, therefore, does not help the defendants in the present case.

In Biswanath Prasad v. Chandra Narayan Chowdhury AIR 1921 P.C. 8, the mortgage bond which purported to mortgage a share in a village in the district of Darbhanga and 1 kauri share in a property in the district of Muzafferpur was registered in the district of Muzafferpur. The one kauri share had been purchased by the mortgagor shortly before the execution of the mortgage with the view that he might be able to register the mortgage in Muzafferpur. In that case there was no registered instrument of sale as regards the one kouri share, nor was it proved that there had been a delivery of possession of this one kauri share to the mortgagor so as to give him a title to the property. Their Lordships found that the parties did not intend that this one kauri share should vest in the mortgagor or that it passed under the mortgage, and, that, consequently, the registration of the mortgage deed was invalid. In the present case it is proved that Khawaja Gauhar Ali had title to the one dhur of land included in the lease. This case also, therefore, does not help the defendants in the present suit.

Both the cases just mentioned were considered by a Division Bench of the Allahabad High Court in Durga Prasad Sahu v. Tameshar Prasad AIR 1924 All. 897, and it was held that where a sale of immovable property is a bona fide sale the inclusion of a small plot of land in a different locality from the bulk of the property sold for the purpose of obtaining the registration of the sale deed at a particular place will not of itself render the registration of the deed at that place invalid.

It is not necessary to consider the evidence as to whether Khawaja Gauhar Ali or the plaintiffs had possession over this one dhur of land. The plaintiffs have given evidence that they were in possession of this one dhur of land and that they had let it out to a certain Bengali Tamoli and had realized rent from him. The learned Subordinate Judge has found that this was false. Most likely they did not settle the land with Bengali Tamoli, but as I have said above, it is not open to the defendants to contest the title of their lessors. The principle involved in Section 115, Indian Evidence Act, would apply, and it must be held that Khwaja Gauhar Ali had title and possession and the plaintiffs also acquired title and possession under their lease from Khawaja Gauhar Ali. As to whether the defendants themselves took actual possession of this one dhur of land or not is not of much consequence if the property was in existence and if the plaintiffs put the defendants in a position to take possession of the properties so that the defendants if they liked could take actual possession of it. The question as to whether the defendants did actually take possession is not a question of any importance in the present case. I am, therefore, of opinion that the sublease on the basis of which the present suits have been instituted was properly registered at Monghyr and it was not invalid for want of registration.

As regards the question as to whether the learned Subordinate Judge of Monghyr had jurisdiction to entertain the present suits, it is clear that upon the finding as to the existence of the 1 dhur of land and the inclusion thereof in the sublease, the Subordinate Judge had jurisdiction to entertain the suits. The learned advocate for the defendants admitted that there was no doubt as regards the jurisdiction of the Subordinate Judge to entertain the suit for rent inasmuch as the prayer was for sale of the properties given in security by the defendants and all those properties lay within the jurisdiction of the Subordinate Judge of Monghyr. As regards the suit in ejectment, I am of opinion that that suit also was within the jurisdiction of the Subordinate Judge.

Mr. Hasan Imam has argued that even if the one dhur of land in the town of Monghyr was included in the lease of the plaintiffs, the sublease was only as regards the villages in the district of Gaya and he refers to the terms of the second putta and kabuliyat (Exs. F (1) and (3) where it is stated that the property let out in katkena lease was the mustajiri interest of the plaintiffs "in the said mauzahs" and his argument was that the said mauza referred to the villages in the district of Gaya and not to the one dhur of land in the town of Monghyr. It is true that it is stated in the katkena putta as well as in the kabuliyat that the lessors let out their mustajiri interest "in the said mauzas;" but the description of "the said mouzas" apparently included not only the villages in the district of Gaya, but also the one dhur of land in the town of Monghyr. Both the putta and the kabuliyat open with a description of the property given in lease by Khwaja Gauhar Ali to the plaintiffs and the one dhur of land in the town of Monghyr is included therein. The putta and the kabuliyat then state that the lessors had sublet "the said leasehold property" in katkena to Khooblal Singh and others under the first sublease dated 16th July 1916 and it is stated that the said katkenadars had been in possession and occupation of "the lease-hold property."

After reciting the first sublease, the putta and the kabuliyat of the 12th June 1921 go on to state the fact of the partition amongst the members'' of the joint family of Khooblal Singh and others, and the fact that Kooblal Singh and Ajodhya Singh did not like to have the katkina settlement of "the property" any longer and that Masoodan Singh was desirous of continuing the sublease by allowing the original thika putta of the year 1916 to stand. The putta and the kabuliyat then state that the lessors had agreed to comply with the request of Masoodan Singh and others and to let-out. "the lease-hold property" in katkena to Masoodan Singh. It is clear, therefore, that what was intended to be given in sublease was not only the villages lying in the district of Gaya, but also the one dhur of land in the town of Monghyr--In fact the whole of the lease-hold property given by Gauhar Ali to the plaintiffs. In the deed of surrender (Ex. 4, p. 34 of the paper book, part III) which was executed by the present defendant 1 Masoodan Singh-along with his co-sharers Khooblal Singh and Ajodhya Prasad Singh there is a clear recital that the villages in the district of Gaya as well as the one dhur of land in Guhiapokhar in the town of Monghyr had been taken in sublease by them and that they were surrendering the sublease of the villages in Gaya as well as of the one dhur of land in Guhiapokhar in the town of Monghyr. Again in the zamanatnama or the security bond (Ex. 10) executed by Masoodan Singh and others there is also a clear admission that the one dhur of land in Guhiapokhar in the town of Monghyr had been taken by them in sublease from the plaintiffs and that the security bond was executed for the due payment of the rent of the sublease. The first katkina of the 16th July 1916 also speaks of "the lease-hold property" which includes the village in Gaya as well as the one dhur of land in Monghyr. There is, therefore, no substance in the contention of the learned Counsel for the defendants that the one dhur of land was not included in the sublease. There is a clear admission by the defendants in the deed of surrender as well as in the security bond that the one dhur of land was included in the sublease.

It is contended on behalf of the appellants that even if the registration of the sub-lease be invalid the tenancy can be proved without proving the written lease which may be inadmissible for want of registration, and he refers to Ameer Ali v. Yakub Ali Khan [1914] 41 Cal. 347, There is a good deal of force in this contention, and it is clear that even if the registration of the sublease be invalid the tenancy can be proved otherwise; and in the present case there can be no doubt upon the evidence on the record that the tenancy was created. The tenancy can also be proved by the doctrine of part performance. (The judgment then discussed the question of payment and holding that the payments alleged by the defendants had not been proved, proceeded). The question next arises that, if the payments alleged by the defendants had not been proved, are the plaintiffs entitled to a decree in ejectment? The sublease expressly provides that if the sublessees fail to pay off the consecutive instalments of a year, and if they do not make any payments for that year, then the lessors would be competent to dispossess the sublessees from the leasehold property and take direct possession thereof. Upon the evidence there has been a breach of covenant and the forfeiture has been incurred. The entire rent of 1331 remained unpaid. The plaintiff''s case is that the sublease is governed by the Bengal Tenancy Act and Section 66 of the Act applies. On the other hand if is contended that the sublease is governed not by the Bengal Tenancy Act but by the Transfer of Property Act and Section 3, Transfer of Property Act, applies. I am of opinion that the sublease in question is governed by the Bengal Tenancy Act. The lease was of agricultural lands and the katkinadar was under the terms of the sub-lease to hold possession of the katkina property and

by making cultivation and proper management to pay the fixed amount of rent regularly.

It is, however, not necessary to consider the matter in detail as Mr. Hasan Imam for the defendants prefers to apply the provisions of Section 66, Bengal Tenancy Act, to that of the Transfer of Property Act and be concedes that the Bengal Tenancy Act would apply. A forfeiture has thus been incurred and the plaintiffs are entitled to possession.

The other points raised by the other issues have not been pressed by either party. Nothing has been said on behalf of the plaintiffs as regards claim for damages for non-delivery of papers. The result is that the rent suit must be decreed for the entire amount of rent with interest as claimed. The claim for damages for non-delivery of papers will be dismissed, and a decree will be made for the realization of the total amount of rent due according to the account given in the plaint with interest on the entire-amount at sis per cent. per annum. A decree will be made for sale of the properties mentioned in the security bond and set out in Schedule 2 to the plant for realization for of the amount found due. The appeal No. 156 of 1925 arising out of the rent suit No. 16 of 1924 will be decreed. The plaintiffs would be entitled to their costs in proportion to the amount decreed in this Court as well as in the Court below with interest thereon at six per cent. per annum. The ejectment suit giving rise to appeal No. 159 will also be decreed with costs in both Courts. The decree, however, shall not be executed if the amount found due and the costs of the suits are paid into the Court within six months of the date when the decree in the rent suit is prepared and the amount is ascertained. Having regard to the circumstances of the case and the amount involved we are of opinion that the period should be extended to six months in the present case. The appeal No. 159 of 1925 is, therefore, decreed in the terms stated above.

Das, J.

I agree.