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Judgment
The question involved in this appeal is whether the plaintiffs are entiled to recover the lands which were surrendered by them in favour of the landlord and which the latter settled with the defendants.
The land constituted a raiyati holding, and though is was held under a lease, it was not for a fixed period. u/s Clause (1), therefore, the raiyat could surrender the holding. He did in fact surrender it and the surrender was accepted by the landlord.
There is no doubt that a surrender can be effected without an instrument at all see the cases of Khankar Abdur Rahman v. Alt Hofez 28 C. 256 : 5 C.W.N. 351 and Brojonath Sarma v. Maheswar Gahani 46 Ind. Cas. 100 : 28 C.L.J. 220. This proposition is not disputed. But the learned Pleader for the appellant contends that as the original lease was a registered one, the surrender must, under the provisions of Section 92, proviso 4, of the Evidence Act, also be a registered instrument. He relies upon the case of Sarat Chandra Sinha v. Naritya Gopal Biswas 8 Ind. Cas. 47 : 13 C.L.J. 284 where it was held that the lease having been a registered one, oral evidence was not admissible to prove a surrender and abatement of rent. But in that case possession was no. given up. The landlord sued to recover possession on the allegation that there was an oral surrender of a portion of the tenancy and a reduction of rent, and it was accordingly held that the original lease having been a registered one, oral evidence was not admissible to prove the surrender and the subsequent variation in the rent. Besides it does not appear what the nature of the tenancy was in that case.
In the present case, as stated above, the tenancy was a raiyati holding. It is found by both the Courts below that the plaintiffs and their co-sharers surrendered the holding and gave up possession in favour of the landlord, who accepted the surrender, and entered into possession and let out the lands to the defendants who have since then been in possession.
We think in the circumstances the plaintiffs are not (sic) succeed.
The appeal accordingly fails and is dismissed with costs.