Jagatbandhu Dutta vs Shayam Chand Bhole and Others

Mohamad Noor, J.—This second appeal is by the plaintiff. The suit was for recovery of possession of 30 bighas 12 kathas 4 dhurs of raiyati land which was settled with him by Gangadhar Digwar landlord of the village. The plaintiff''s case, as it appears from his pleadings and evidence, was that he was in search of some land and heard that one Kripasindhu (defendant 2) was anxious to dispose of his holding. As this could not be done under the tenancy law in force in Singhbhum it was arranged that Kripasindhu would surrender the land to the landlord and the landlord in turn settle it with the plaintiff. Consequently Kripasindhu surrendered his holding of 21 bighas 15 kathas to the landlord and the plaintiff got the settlement of 30 bighas of land on payment of Rs. 1,300, out of which Rs. 600 was paid to Kripasindhu as compensation for surrendering his holding.

Out of this 30 bighas odd 16 bighas 5 cottahs 12 dhurs is said to have been the bakasht of landlord and the remaining 14 bighas 6 cottahs 10 dhurs a part of the surrendered holding of 21 bighas odd. After taking the settlement the plaintiff cultivated the land himself then gave it to Khetra Mohan Giri on bhag. Defendant 1 prosecuted Khetra Mohan Giri for removal of the crop of the land with the result that Khetra Mohan Giri was convicted. Consequently the plaintiff instituted the present suit for recovery of possession of the land.

Defendant 2, Kripasindhu did not enter appearance. He was however examined as a witness on behalf of defendant 1 who alone contested the suit. His defence was that the entire land, namely, 30 bighas 12 kathas 4 dhurs was the occupancy holding of Kripasindhu who having become old wanted to distribute his property among his relatives and old servants, defendant 1 being one of the latter.

As transfers could not be effected under the tenancy law of Chota Nagpur, it was arranged that Kripasindhu would surrender 21 bighaa odd of land out of his holding to the landlord and the landlord would settle it with defendant 1 on receipt of Rs. 100 as salami. It was in consequence of this arrangement that the deed of surrender which had already been executed was made over to the landlord Gangadhar Digwar. Gangadhar Digwar and his servant Khetra Mohan Giri did not stick to their terms and settled a portion of that land together with another 16 bighas odd of land of Kripasindhu which was not included in the surrender with defendant 1 in consequence of which both Gangadhar and Khetra Mohan Giri were prosecuted for cheating and were convicted. The surrender was repudiated by defendant 1 on the allegation that it was made on the understanding that the land would be settled with him.

He claimed to be in possession of the suit land under the authority of defendant 2.

The trial Court accepted the plea of the defendant in full and dismissed the plaintiff''s suit. On appeal the learned Subordinate Judge has held that 16 bighas 5 kathas 14 dhurs which was claimed by the plaintiff'' to be the bakasht land of the landlord was really so and in respect of it be has decreed the plaintiff''s suit. He however upheld the finding of the trial Court in respect of the 14 bighas odd land which was to effect that the deed of surrender was obtained by fraud and was ineffective and he dismissed the plaintiff''s suit in respect of it. The plaintiff has appealed and only 14 bighas and odd which was admittedly a portion of the occupancy holding of Kripasindhu Maity and which is claimed by the plaintiff to have been surrendered by the former and then settled by the landlord with the latter is the subject-matter of the appeal.

The simple question involved is whether there was in fact a valid surrender of the holding by Kripasindhu. Now the common case of the parties is that the surrender was made to settle the land with somebody. On the one hand the plaintiff''s case is that the surrender was brought about by him so that the landlord might settle the land with him and that Kripasindhu got Rs. 700 in this transaction. On the other hand the defendant alleges that the surrender was made because Kripasindhu wanted to make a gift of this land to defendant 1 and as this could not be done the device of surrender was resorted to and that the landlord undertook to settle it with defendant 1.

It has been found by the Courts below that the deed of surrender was executed some months before the actual negotiation between Kripasindhu and the landlord. Having registered the deed of surrender (in fact no deed was necessary for a surrender) Kripasindhu came to the landlord and suggested to him that he would, surrender the land provided the landlord settled it with defendant 1 on taking Rs. 100 a salami. The landlord however fraudulently settled the land with the plaintiff. They have further found that the deed of surrender was obtained from Kripasindhu by the landlord by means of fraud and therefore that was in fact no surrender. They have also doubted the bona fides of the settlement with the plaintiff.

Mr. Mullick has contended first that once there was a surrender non-fulfiLlment of a promise to be performed subsequently will not make the surrender itself ineffective. Secondly, that there is nothing to show that at the time when the deed of surrender was made over to the landlord he had no intention of doing what he promised to do. A later breach of promise of settlement will not make the transaction of surrender fraudulent and it cannot be said that the deed was obtained by fraud and lastly that fraud, if there was any, will only make the surrender voidable and not void and can only be repudiated by Kripasindhu and not by defendant 1. He referred to Section 19, Contract Act, and contended that a contract obtained by fraud was only voidable at the instance of the party defrauded and the only person defrauded was defendant 2 who has not entered appearance in this case.

Therefore the surrender cannot be impeached by a third party defendant 2 who has apparently no title to the land and in the absence of any defence having beer set up by defendant 2, the plaintiff''s suit ought to have been decreed.

Now the plaintiff has sued for ejectment of defendant 1 who according to him is in possession of the land by obtaining possession of it, however wrongly it might have been, from Khetra Mohan Giri with whom the plaintiff according to his allegation had settled the land. The plaintiff cannot succeed unless he proves a title in himself. We are not concerned with the title of defendant 1 He may have no title in the land. Perhaps he has none.

But he is admittedly in possession and he can retain his possession though based upon no title against the whole world except the rightful owner. It is for the plaintiff to show that he is that owner. The defendant can defend his possession by impeaching the plaintiff''s title. Now the title claimed by the plaintiff is the settlement from the landlord and the title of the landlord according to plaintiff himself was derived by virtue of the surrender from Kripasindhu Maity who was admittedly till the alleged surrender the raiyat of the land.

It was therefore incumbent upon the plaintiff to prove a valid surrender by Kripasindhu. Defendant 1 was entitled to show that the deed of surrender relied upon by the plaintiff was obtained by fraud or misrepresentation. Mr. Mullick contends that there being no denial of surrender by Kripasindhu the plaintiff''s title must be taken to have been admitted by him and cannot be disputed by defendant 1. Now under Order 8, Rule 5 the Court may require facts taken to be admitted by non-denial to be proved otherwise. In this case the plaintiff relied upon the surrender, defendant 1 questioned its effectiveness which he was entitled to do and, in my opinion, the Courts were entitled to investigate the fact and validity of the surrender in spite of the non-appearance of defendant 2.

Now on the findings of fact by the learned Subordinate Judge it is clear that the surrender was not an absolute one. It was provisional dependent upon the landlord settling the land with defendant 1. The learned advocate for the appellant has tried to draw a distinction between a condition precedent and a condition subsequent and argued that the promise to settle the land with defendant 1 was not a condition precedent to the surrender but was to be carried out after the surrender and therefore non-performance of it will not vitiate the surrender itself. In my opinion it is a case in which the surrender itself was not absolute but was a provisional one dependent upon the landlord settling it with defendant 1, that is, the surrender was to take effect immediately there was a settlement of the land by the landlord with defendant 1.

A surrender is not effected merely by the execution of a deed unless the deed was executed with a complete intention to surrender.

It has been found in this case that the deed was executed months before there was any talk of surrender between the landlord and the tenant. Now it is obvious that the execution of the deed did not constitute surrender. Then the second stage was the making over of the deed to the landlord. Apart from the question that the deed was obtained by the landlord on a promise which was not fulfilled or was not intended to be fulfilled, the making over of the deed was not a surrender as the deed was made over with a promise that the landlord would settle the land with defendant 1.

It has been argued that unless there was a complete surrender how could the landlord settle with defendant, 1. This is not so. A settlement can be made in anticipation of a surrender. The surrender in this case was to remain in abeyance till the promised settlement with defendant 1 is made. Apart from the question of fraud on which the case has been decided by the learned Subordinate Judge the simple answer to the plaintiff''s case, as I have said, is that the surrender was not to take effect till the settlement was made with defendant 1; or in other words, it was a provisional surrender dependent upon the settlement of the land with defendant 1. Having taken this view of the case it is not necessary to examine in detail the question of fraud, namely whether the facts found constitute fraud and whether the plea of fraud could be raised by defendant 1.

In my opinion on the facts established, the Courts were entitled to infer that the deed was obtained by fraud. It is true that fraud would make the surrender voidable and not void but no suit is necessary to avoid it. Facts found show that defendant 2 never withdrew his possession of the holding and never acted on the surrender; in other words, he did not in fact Surrender. Defendant 1 was entitled to prove fraud to explain how a deed of surrender was in possession of the landlords. The plaintiff''s suit, in my opinion, in respect of 14 bighas odd has been rightly dismissed and the appeal is dismissed with costs.