Maharajadhiraja Sir Kameshwar Singh Bahadur vs Md. Yasin Khan

Wort, J.—This is an appeal from the judgment of the Subordinate Judge arising out of an action in which the plain, tiff claimed arrears of what I shall describe as license fees due, amounting to Rupees 6806.4-0. The plaintiff is the appellant and the difficulty that I find in the case is to discover exactly what the plaintiff''s case is with regard to the terms of the contract he is alleged to have made with the defendant. Broadly stated, it purports to be a license granted to the defendant allowing him to collect hides in one of the circles of the plaintiff''s Raj.

The learned Judge in the Court below has come to the conclusion on the facts against the plaintiff. He has also decided that the grant to the defendant was a monopoly and therefore unenforceable. Sir Sultan Ahmed, appearing on behalf of the plaintiff, contends that what in fact was granted to the defendant was a right to go on to the parti land of the plaintiff for a period of three years according to the terms of the grant, and there to purchase from the Chamars hides of dead animals which they brought there for the purpose of sale. I propose to say as little as possible about this case and I think it quite clear that had a case of that kind been made out (always assuming of course that the findings of fact were in favour of the plaintiff), the sums which are sought to be recovered in this case would be recoverable. But in my judgment no such case, as alleged by Sir Sultan Ahmed, has been established by the plaintiff. For the years 1336 to 1338 Fs. two persons Mamatullah and Muhammad Mustafa had been granted license under a kabuliyat dated 23rd January 1929 which is Ex. H in the case. It is not evidence as regards the terms entered into by the plaintiff with the defendant but it has been put forward as some evidence of the actual terms upon the footing of which the defendant is alleged to have been contracting. The license was granted by an auction which took place on 25th September 1929 and continued until 19th November 1929.

From the bid-sheet it would appear that one of the bidders, Samatullah, was one of the licensees under the license of 1929. This is a fact of importance to the appellant and upon it the appellant relies. Ultimately according to the bid-sheet the license was knocked down to the defendant for the sum of Rs. 2815. I have already observed that it is the contention of Sir Sultan Ahmed, realizing the difficulty he has in the case, that it was a grant to the defendant to go on to the parti land of the plaintiff, but as I have already stated, I see no indication from the evidence of that term, excepting perhaps the evidence of one of the witnesses being Badri Chamar who in examination in chief makes this statement:

Before that (i.e. before license was granted to the defendant) we sold hides to the defendant. For that purpose we used to bring the dead animals to the gairmazrua land of the plaintiff and skin them there.

In this connexion, whilst I am referring to the evidence, I propose to refer to the evidence of Fateh Bahadur Singh, principal witness for the plaintiff. In cross-examination he made this statement:

By settlement with the defendant he was the only person recognized by the plaintiff as entitled to collect hides of all dead animals within the area comprised in Bhawanipur circle. I cannot say if that right includes the right to take the hides even against the will and consent of persons to whom the dead animals belonged, nor do I know if any penalty was ever inflicted upon any person who was not lessee for collecting hides... The plaintiff had no animals of his own in Bhawanipur circle. On settlement of the charsa Mahal we sent parwanas to the Patwaris and Srimans of different places for giving information to all, that the lessee named in the parwanas was to collect hides.

I find it necessary to refer in some detail to the evidence of the plaintiff because from that alone can we get the terms of the agreement. We must look at the substance of the agreement and in viewing the matter in that way, I have no hesitation in saying that the actual license granted by the plaintiff to the defendant was the exclusive right to collect hides in the particular area of the Raj. That statement in my judgment, if correct, would be an end of the plaintiff''s case. It purports to grant a mono-poly to the defendant. I am not wedded to the expression "monopoly" because it is trite to say that the grant to the defendant was a grant to allow him to exercise a right which all His Majesty''s subjects had a right to exercise, if they were so minded--I am using the terms of speech of Lord Halsbury in Rossi v. Edinburgh CorpA.C. 21 at p. 24.

The matter can be tested in this way. Assuming that the defendant had entered into such a contract but ignored the terms of it and'' proceeded to purchase hides from the Chamars--a right which I have already held he is entitled to exercise--could the plaintiff have obtained an injunction against the defendant for exercising that right? Sir Sultan Ahmed admits that an action of that kind would fail, and it was for that reason that it was contended that the right which was granted was a right to go on to the parti land of the plaintiff. In my judgment there was nothing in the evidence which would entitle this Court to come to the conclusion that any such right was granted. The mere fact that the defendant in the exercise of the license which was granted to him by the plaintiff might have found it necessary to go from time to time on to the parti land, in my opinion, makes no difference whatever. It is the substance of the matter which has to be looked to.

Now, there are a number of other considerations which in my opinion are fatal to this case. The license which was granted to Samatullah and Mustafa in 1929 was, as I have indicated, a joint license granted to two persons. The point was raised by my learned brother during the course of the argument as to whether the licensees under that license had surrendered their right. Sir Sultan Ahmed relied upon the clause in the license to this effect:

Should we, at the end of a year, fail to pay rent in respect of the next year, the Maharajadhiraj Bahadur and his authorized agent shall, as per terms of this kabuliyat, be competent to make settlement with other mustajir without having any regard for (the non-expiry of) the term, etc.

Sir Sultan''s contention as I have said is that the surrender was unnecessary. That may very well have been so; but the case clearly made out by the plaintiff in this matter is shown by the evidence of Fateh Bahadur Singh, witness 1 on behalf of the plaintiff, to this effect:

When I took charge, the Charsa mahal in suit was in possession of one Samatullah as a lessee of the plaintiff. Samatullah''s settlement had not been sanctioned by the head office of the plaintiff and so Samatullah surrendered his right as lessee to me by filing a petition before me.

The only importance of that matter, but it is a vital importance in this case, is that the defendant pleaded that he refused to go on with the matter although he had been the highest bidder, because he found that the prior licensees were still in possession. It is fatal to the plaintiff''s case for this reason that the case, which I have already pointed out was a case of surrender and the evidence relied upon by the plain, tiff would prove at the most surrender of one person alone which is insufficient and indeed supports the defendant''s contention. The reason given for the surrender, viz. the inability to pay the rent, in my judgment does not in any way affect the matter.

The question whether this is license or lease in my judgment is clear. It is a license, and indeed, had it been a lease, such a contention would have been fatal to the plaintiff''s case, because there was no document in this case nor was any registered. Quite apart from the decision of the learned Judge on questions of fact with regard to which he declined to believe the plaintiff''s case, the case would have failed by reason of the fact that the plaintiff here had purported to grant for a consideration a right to the defendant which he had already and a right which without a license he was entitled to exercise. A contract of that kind in my judgment is unenforceable and for that reason alone I would hold that the decision of the learned Judge in the Court below is right. The appeal fails and must be dismissed with costs.

Manohar Lall, J.

I agree. I only wish to add that the evidence in the case justifies the finding of the learned Subordinate Judge that

under the settlement the lessee is entitled as the only person to collect hides from all mauzas comprised within the Bhawanipur Circle and that the Chamars and owners of dead animals are bound to sell hides to the lessees and none else.

This finding, which has not been assailed before us, distinguishes the present case from the case in K.L. Mackenzie v. Rameshwar Singh Bahadur (A.I.R.1916. Pat. 304. The terms of the lease in that case are not quoted in the judgment, but it appears from the judgment that the learned Judges who decided that case came to the conclusion that the kabuliyat in that case could not be construed as granting a monopoly in favour of the defendant of that case. In the present case the oral evidence, which has been accepted, makes it clear that there was an attempt by the plaintiff to create a monopoly in favour of the defendant. It follows that if the plaintiff had been successful in establishing that the defendant was let into possession on the basis of the contract, which is the basis of the present action, the contract would have been unenforceable by reason of Section 23, Contract Act.