Sir Rameshawr Singh Bahadur vs Shaik Kitab Ali

Dawson-Miller, C.J.—The question for decision in this appeal is whether a document referred to as a dak Hard produced in evidence on behalf of the plaintiff is a lease. The plaintiff sued the defendant for rent at the rate of Rs. 5 per bigha for the years 1323 to 1326 F. The defendant had previously been in possession of the land under a registered kabulayat for a term of five years which expired at the end of 1322 F. at a rental of Rs. 2-8-0 per bigha. Shortly before the expiry of the term thel and was put up to auction for settlement from 1323 F. onwards under a permanent tenancy. The defendant bid Rs. 5 per bigha rent and Rs. 4 nazarana and his offer was accepted.

There was only one other bidder. The defendant remained in possession after the expiry of his original lease and at the beginning of 1327 F (September 1919) he was sued for rent for the three previous years which he had not paid, His case was that although he bid for the load he only bid Rs. 2-8-0. The bid-sheet or dak fard showing the bids made at the auction was produced and from this it appears that the plaintiff bad bid Rs. 5 and it bore his thumb impression in the margin under the words:

Signature of the highest bidder with whom the settlement has been made.

In answer to this he admitted his impression, but said the form was not filled up when he impressed his thumbmark. This evidence was not believed and it was found by the Munsiff, who tried the case after remand, that the defendant did agree to pay Rs. 5 per bigha under the bid-sheet. This document is a printed form, headed "Settlement by auction with the highest bidder." The particulars to be filled in are: (1) date, (2) officer conducting the sale, (3) details of the property and description, (4) name of the highest bidder, (5) period of settlement, (6) condition of settlement, (7) names of bidders and amount bid. In the margin there are spaces for the signatures of (a) the highest bidder with whom the settlement has been made, (b) the officer conducting the sale and (c) the muharrir in attendance at the sale. In the document in question the particulars numbered (5) and (6) above are left blank. The details of the property and description are entered as "23 bighas 5 cottahs 15 dhurs expired term land in village Sondeep, Pargana Dharampur," but no boundaries are given. It has nowhere been suggested, however, that the land so described was not the defendant''s holding. Had the matter rested there I doubt if it would have occurred to anyone that the document was a lease or that if was any more than a memorandum kept by the landlord of the verbal transaction which took place by the bidding at the auction. It was in fact kept by the landlord''s manager and was clearly not intended to be delivered to the tenant as a document of title. It may have been contemplated that a patta would eventually be granted and the document would no doubt have been of use for that purpose, but for some reason or other, possibly oversight, no formal lease was ever prepared.

After the defendant had impressed his thumb-mark in the space indicated for the signature of the highest bidder the plaintiffs sub-manager wrote in red ink at the foot of the document the following entry and initialed it:

Settled 23rd June 1916 of land at Rs. 5 rate and Rs. 4 per bigha salami with Shaikh Kitab Ali permanently from 1323 F.

The Courts below have differed as to the nature of this document. The Munsif held that it was a lease and being unregistered was inadmissible in evidence. He accordingly passed a decree for rent at Rs. 2-8-0 per bigha, the rate, admitted by the defendant.

The Subordinate Judge on appeal considered that it was merely a memorandum and could not be construed as a lease or an agreement to lease and passed a decree for rent at the higher rate

Mr. Justice Adami, on second appeal to this Court, held that it was a lease and restored the decree of the Munsif.

A number of cases have been referred to in argument in which various kinds of documents have been in question some of which have been held to be leases and some of which have not, but each document and the circumstances under which it came into existence must be considered separately, and the construction of one document is not generally of much assistance in construing another which may differ materially in its terms and in the attendant circumstances. In the present case it is of importance to bear in mind that when the defendant appended his thumb-impression the document did not contain all the entries which now appear upon it. Neither the period of settlement nor the conditions of settlements were entered it contained merely the date, name of the officer conducting the sale, description of the property, names of the bidders and their bids and the name of the highest bidder. The most material terms, namely the period and the condition of settlement were not recorded. Why then was the thumb-impression of the defendant taken? I think that the answer to this must be that it was for purposes of identification and as an acknowledgment that he was the person who made the highest bid and with whom the settlement had been made. He was already in possession and the rent was being increased in accordance with his own bid. There was nothing in the document at that time to show that he had taken a permanent settlement or a lease on any other conditions than those on which he already held except that be had bid a higher rent. The settlement, as the beading shows, was a settlement by auction; in other words, a verbal settlement, and the document which did not contain the most important terms and was never intended to be delivered to the lessee as a document of title could not, in such circumstances constitute a lease. Can it make any difference then that the plaintiff''s sub-manager afterwards noted thereon that the land had been settled permanently at the rent named with the defendant from 1323 F.? I think not. This was merely a note upon a document intended to be kept for his own purposes showing the terms of the agreement verbally come to by the defendant. In my opinion the document in question was not and never intended to be a lease and cannot be interpreted as such. I think that the judgment under appeal must be set aside and the decree of the learned Subordinate Judge restored. The appellant is entitled to his costs throughout.

Foster, J.

I agree.