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Shubrati v. Kunj Behari Lal And Others
Structured Summary of the Opinion
Factual and Procedural Background
The plaintiffs instituted a suit in 1940 for possession of the site of certain houses specified in the plaint. They claimed ownership under two sale deeds executed by the erstwhile owners, Syed Mahmudul Husain and Mir Latafat Ali on 3 September 1909 and 4 August 1910. The plaintiffs further alleged that on 16 August 1910 an agreement was executed in their favour by Rajjab (identified by plaintiffs as the father of the appellant Shubrati) and others, whereby those persons and their descendants agreed to vacate the land and give the building materials to the plaintiffs on receipt of the price. The plaintiffs said they gave notice in 1936 to vacate the land, but the defendants did not do so.
The defendants denied the plaintiffs' title and the validity of the agreement, pleaded the bar of 12 years' limitation and alleged estoppel and acquiescence. The appellant (defendant 12, Shubrati) specifically contended that the 1910 agreement was a fictitious transaction executed by some other "Rajjab" (not his father), that the house had been rebuilt at a cost of Rs. 2,000, and that estoppel/acquiescence barred the claim. A further defensive contention was that the disputed platform was an imam chowk; the Munsif found that the platform had been taken over by the Municipality for road construction.
At trial the learned Munsif found the plaintiffs' ownership established, rejected the defence that the agreement was fraudulently obtained from a different Rajjab, characterized the transaction as a lease within the meaning of Section 103, T.P. Act, rejected estoppel/acquiescence and decreed the suit, directing removal of materials within four months and providing an alternative route to possession upon payment of Rs. 586-4-0.
The defendants appealed. The learned Civil Judge affirmed the decree on ownership and genuineness of the agreement and found that Rajjab was indeed the appellant's father; but he disagreed with the Munsif on the statutory characterisation, holding the 1910 transaction not to be a lease under Section 105, T.P. Act while still admitting it in evidence to show the parties' legal position (treating the defendant's position as that of a lessee).
Defendant 12, Shubrati, then brought the matter in a second appeal before the present Court. The appellant's counsel urged that the 1910 deed should be excluded from consideration. The plaintiffs' counsel argued that even if the document was not a formal lease, it was admissible to show the nature of possession.
Legal Issues Presented
- Whether the deed/agreement dated 16 August 1910 is admissible in evidence and can be relied upon by the plaintiffs in this ejectment suit.
- Whether the 1910 transaction amounts to a lease within the meaning of the relevant provisions of the Transfer of Property Act (variously referred to in the opinion as Sections 103, 105 and 107 in different contexts), and if so, what legal consequences follow.
- Whether the plaintiffs are entitled to possession of the disputed site in view of the plaintiffs' claimed title, the defendants' denial, and defences pleaded (including limitation, estoppel and acquiescence).
- Whether the defendants' alternative factual contentions (that the 1910 agreement was fictitious; that the house was rebuilt at their cost; and that the disputed platform was an imam chowk taken over by Municipality) defeat the plaintiffs' suit.
Arguments of the Parties
Appellant / Defendants' Arguments
- The agreement of 16 August 1910 is a fictitious transaction purportedly secured from a person other than the appellant's father (i.e., was not genuinely executed by Rajjab the appellant's father).
- The plaintiffs' suit is barred by limitation (a 12-year bar was specifically pleaded).
- The defendants rely on estoppel and acquiescence to defeat the plaintiffs' claim.
- The appellant asserted that the house had been rebuilt at a cost of Rs. 2,000, implying investments and improvements by the defendants.
- There was a defensive contention that the disputed platform was an imam chowk, and evidence was led that the Municipality had taken it over for roadway construction.
- In second appeal, counsel for defendant 12 specifically urged that the 1910 deed should be ruled out of consideration altogether.
Respondents / Plaintiffs' Arguments
- The plaintiffs claimed ownership under two sale deeds (3 September 1909 and 4 August 1910) and relied on the 16 August 1910 agreement and a notice to vacate issued in 1936 to support their suit for possession instituted in 1940.
- The plaintiffs contended the 1910 agreement was a valid transaction executed by Rajjab (the father of the appellant) and binding on the defendants and their descendants.
- The plaintiffs' counsel in the second appeal argued that even if the 1910 document was not a formal lease, it remained admissible in evidence to show the nature of the defendants' possession and that possession would be of a lessee.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Anand Sarup v. Chawwa ('16) 3 A.I.R. 1916 All. 241 | The respondents' counsel relied upon this case (no specific principle from the text is extracted beyond reliance). | The opinion states that this case has "no application" to the facts of the present matter. |
| Nand Ram v. Saraj Husain Khan ('38) 25 A.I.R. 1938 All. 42 | Relied upon by respondents' counsel (no explicit principle summarized in the opinion beyond reliance). | The opinion records that this case, in the view of the judge, has "no application" to the present matter. |
| Mirza Mohammad Hasan v. Buddu ('38) 25 A.I.R. 1938 All. 32 | Discussed for the proposition that a certain instrument did not amount to a lease within the meaning of the relevant section of the T.P. Act; Ismail J.'s reasoning referred to earlier cases such as Nand Lal. | The present judge found that parts of Mirza Mohammad Hasan were, in some respects, in favour of respondents, but ultimately held that the interpretation placed upon earlier authority by the learned Judge in Mirza Mohammad Hasan was not supported by that earlier authority. The judge therefore did not regard Mirza Mohammad Hasan as support for the respondents' position. |
| Ganga Sahai v. Badrul Islam ('42) 29 A.I.R. 1942 All. 330 | Relied upon by respondents' counsel; the case was treated as applying Ismail J.'s view. | The present judge considered this case to suffer from the same infirmity as Mirza Mohammad Hasan and dissented from Bajpai J.'s acceptance of Ismail J.'s view. |
| Nand Lal v. Hanuman Das ('04) 26 All. 368 | Held that a "sarkhat" or "qabuliat" did not amount to a lease within the meaning of Section 107, T.P. Act; Blair J. ruled the deed of 1898 to be of no legal value as a lease. | The present Court relied on Nand Lal as authoritative: on that authority the plaintiffs are not entitled to rely on the 1910 deed. The judge treated Nand Lal as foundational to his conclusion that the 1910 deed should be ruled out of consideration. |
| Hem Chandra v. Ram Bharosay (L.P.A. No. 72 of 1897) (16 Mar 1898) | An earlier judgment relied upon in the chain of authority that informed Blair J.'s reasoning in Nand Lal; involved views on whether certain instruments created tenancies. | The opinion notes Blair J.'s judgment was based upon Edge C.J. and Burkitt J.'s judgment in this matter; Hem Chandra is part of the genealogy of authority considered when assessing Nand Lal and related decisions. |
| Pyare Lal v. Ram Swarup ('44) 31 A.I.R. 1944 All. 221 | Dealt with compensation for use and occupation rather than ejectment; cited by respondents' counsel. | The present judge observed that the facts of Pyare Lal differ from the present case, and that that decision did not directly apply because it was not a case of ejectment but of compensation for use and occupation. |
Court's Reasoning and Analysis
The Court first reviewed the findings of the two lower courts:
- The learned Munsif found plaintiffs' ownership established, rejected fraud allegations concerning the identity of Rajjab, characterised the 1910 transaction as a lease within the meaning of Section 103, T.P. Act, rejected estoppel/acquiescence defences and decreed the suit with directions for removal of buildings or alternate possession upon payment.
- The learned Civil Judge affirmed ownership and genuineness of the executant's identity but held the 1910 transaction was not a lease under Section 105, T.P. Act; he nonetheless admitted the document in evidence to show the parties' legal positions and treated defendants' position as that of a lessee for practical purposes.
The Court then addressed the central contest in the second appeal: whether the 1910 deed should be ruled out of consideration. The respondents relied on several precedents; the Court considered each in turn and assessed their applicability:
- Certain authorities relied upon by respondents (Anand Sarup and Nand Ram) were regarded by the Court as not applicable to the facts before it.
- The Court examined the line of authority beginning with Nand Lal v. Hanuman Das where Blair J. held that a "qabuliat" (sarkhat) was not a lease within the meaning of the statutory provision then invoked (Section 107), and where the deed of 1898 was ruled of no legal value as a lease. The Court carefully reviewed the facts and reasoning in that chain of cases, including the opinions of Blair J., Edge C.J., Burkitt J. and Banerji J.
- The Court concluded that the interpretation placed on Nand Lal by Ismail J. in Mirza Mohammad Hasan v. Buddu (and later accepted by Bajpai J. in Ganga Sahai v. Badrul Islam) was not, in the present judge's view, supported by Nand Lal itself. The judge respectfully dissented from those later interpretations which sought to treat the qabuliat-like instrument as having effective legal value as a lease for the purpose of ejectment.
- Given the authority of Nand Lal (that certain qabuliat or sarkhat instruments do not constitute a statutory lease and may be ruled out of legal effect for the purposes of an ejectment suit), the Court held that on that authority the plaintiffs are not entitled to rely on the 1910 deed.
- The Court also noted that Pyare Lal v. Ram Swarup concerned compensation for use and occupation and thus raised different considerations; it was not controlling in an ejectment context.
Having ruled the 1910 deed out of consideration, the Court observed the procedural and practical consequence that the parties must be relegated to status quo ante. The Court then assessed the remaining material: the defendant's written statement asserted that the constructions were made with the consent of the erstwhile owners — a stand which, as the Court noted, was not repudiated by the plaintiffs. On that basis, in the absence of the 1910 deed being available as legal foundation for the plaintiffs' claim, the plaintiffs could not succeed in ejecting the defendant.
Holding and Implications
Core Ruling: The Court allowed the appeal, set aside the decrees of the Courts below, and dismissed the plaintiffs' suit with costs in all Courts.
Implications and direct consequences:
- The 1910 deed/agreement was ruled out of consideration for the purposes of this ejectment suit on the basis of the authority discussed (principally Nand Lal v. Hanuman Das and the Court's analysis of subsequent interpretations).
- Because the 1910 deed could not be relied upon by the plaintiffs, the parties were returned to the status quo ante; the defendant could not be ejected given the defendant's unrepudiated plea that the constructions were
Structured Summary of the Opinion
Factual and Procedural Background
The plaintiffs instituted a suit in 1940 for possession of the site of certain houses specified in the plaint. They claimed ownership under two sale deeds executed by the erstwhile owners, Syed Mahmudul Husain and Mir Latafat Ali on 3 September 1909 and 4 August 1910. The plaintiffs further alleged that on 16 August 1910 an agreement was executed in their favour by Rajjab (identified by plaintiffs as the father of the appellant Shubrati) and others, whereby those persons and their descendants agreed to vacate the land and give the building materials to the plaintiffs on receipt of the price. The plaintiffs said they gave notice in 1936 to vacate the land, but the defendants did not do so.
The defendants denied the plaintiffs' title and the validity of the agreement, pleaded the bar of 12 years' limitation and alleged estoppel and acquiescence. The appellant (defendant 12, Shubrati) specifically contended that the 1910 agreement was a fictitious transaction executed by some other "Rajjab" (not his father), that the house had been rebuilt at a cost of Rs. 2,000, and that estoppel/acquiescence barred the claim. A further defensive contention was that the disputed platform was an imam chowk; the Munsif found that the platform had been taken over by the Municipality for road construction.
At trial the learned Munsif found the plaintiffs' ownership established, rejected fraud allegations concerning the identity of Rajjab, characterised the transaction as a lease within the meaning of Section 103, T.P. Act, rejected estoppel/acquiescence and decreed the suit with directions for removal of materials within four months and providing an alternative route to possession upon payment of Rs. 586-4-0.
The defendants appealed. The learned Civil Judge affirmed the decree on ownership and genuineness of the agreement and found that Rajjab was indeed the appellant's father; but he disagreed with the Munsif on the statutory characterisation, holding the 1910 transaction not to be a lease under Section 105, T.P. Act while still admitting it in evidence to show the parties' legal position (treating the defendant's position as that of a lessee).
Defendant 12, Shubrati, then brought the matter in a second appeal before the present Court. The appellant's counsel urged that the 1910 deed should be excluded from consideration. The plaintiffs' counsel argued that even if the document was not a formal lease, it was admissible to show the nature of possession.
Legal Issues Presented
- Whether the deed/agreement dated 16 August 1910 is admissible in evidence and can be relied upon by the plaintiffs in this ejectment suit.
- Whether the 1910 transaction amounts to a lease within the meaning of the relevant provisions of the Transfer of Property Act (variously referred to in the opinion as Sections 103, 105 and 107 in different contexts), and if so, what legal consequences follow.
- Whether the plaintiffs are entitled to possession of the disputed site in view of the plaintiffs' claimed title, the defendants' denial, and defences pleaded (including limitation, estoppel and acquiescence).
- Whether the defendants' alternative factual contentions (that the 1910 agreement was fictitious; that the house was rebuilt at their cost; and that the disputed platform was an imam chowk taken over by Municipality) defeat the plaintiffs' suit.
Arguments of the Parties
Appellant / Defendants' Arguments
- The agreement of 16 August 1910 is a fictitious transaction purportedly secured from a person other than the appellant's father (i.e., was not genuinely executed by Rajjab the appellant's father).
- The plaintiffs' suit is barred by limitation (a 12-year bar was specifically pleaded).
- The defendants rely on estoppel and acquiescence to defeat the plaintiffs' claim.
- The appellant asserted that the house had been rebuilt at a cost of Rs. 2,000, implying investments and improvements by the defendants.
- There was a defensive contention that the disputed platform was an imam chowk, and evidence was led that the Municipality had taken it over for roadway construction.
- In second appeal, counsel for defendant 12 specifically urged that the 1910 deed should be ruled out of consideration altogether.
Respondents / Plaintiffs' Arguments
- The plaintiffs claimed ownership under two sale deeds (3 September 1909 and 4 August 1910) and relied on the 16 August 1910 agreement and a notice to vacate issued in 1936 to support their suit for possession instituted in 1940.
- The plaintiffs contended the 1910 agreement was a valid transaction executed by Rajjab (the father of the appellant) and binding on the defendants and their descendants.
- The plaintiffs' counsel in the second appeal argued that even if the 1910 document was not a formal lease, it remained admissible in evidence to show the nature of the defendants' possession and that possession would be of a lessee.
Table of Precedents Cited
Precedent Rule or Principle Cited For Application by the Court Anand Sarup v. Chawwa ('16) 3 A.I.R. 1916 All. 241 The respondents' counsel relied upon this case (no specific principle from the text is extracted beyond reliance). The opinion states that this case has "no application" to the facts of the present matter. Nand Ram v. Saraj Husain Khan ('38) 25 A.I.R. 1938 All. 42 Relied upon by respondents' counsel (no explicit principle summarized in the opinion beyond reliance). The opinion records that this case, in the view of the judge, has "no application" to the present matter. Mirza Mohammad Hasan v. Buddu ('38) 25 A.I.R. 1938 All. 32 Discussed for the proposition that a certain instrument did not amount to a lease within the meaning of the relevant section of the T.P. Act; Ismail J.'s reasoning referred to earlier cases such as Nand Lal. The present judge found that parts of Mirza Mohammad Hasan were, in some respects, in favour of respondents, but ultimately held that the interpretation placed upon earlier authority by the learned Judge in Mirza Mohammad Hasan was not supported by that earlier authority. The judge therefore did not regard Mirza Mohammad Hasan as support for the respondents' position. Ganga Sahai v. Badrul Islam ('42) 29 A.I.R. 1942 All. 330 Relied upon by respondents' counsel; the case was treated as applying Ismail J.'s view. The present judge considered this case to suffer from the same infirmity as Mirza Mohammad Hasan and dissented from Bajpai J.'s acceptance of Ismail J.'s view. Nand Lal v. Hanuman Das ('04) 26 All. 368 Held that a "sarkhat" or "qabuliat" did not amount to a lease within the meaning of Section 107, T.P. Act; Blair J. ruled the deed of 1898 to be of no legal value as a lease. The present Court relied on Nand Lal as authoritative: on that authority the plaintiffs are not entitled to rely on the 1910 deed. The judge treated Nand Lal as foundational to his conclusion that the 1910 deed should be ruled out of consideration. Hem Chandra v. Ram Bharosay (L.P.A. No. 72 of 1897) (16 Mar 1898) An earlier judgment relied upon in the chain of authority that informed Blair J.'s reasoning in Nand Lal; involved views on whether certain instruments created tenancies. The opinion notes Blair J.'s judgment was based upon Edge C.J. and Burkitt J.'s judgment in this matter; Hem Chandra is part of the genealogy of authority considered when assessing Nand Lal and related decisions. Pyare Lal v. Ram Swarup ('44) 31 A.I.R. 1944 All. 221 Dealt with compensation for use and occupation rather than ejectment; cited by respondents' counsel. The present judge observed that the facts of Pyare Lal differ from the present case, and that that decision did not directly apply because it was not a case of ejectment but of compensation for use and occupation. Court's Reasoning and Analysis
The Court first reviewed the findings of the two lower courts:
- The learned Munsif found plaintiffs' ownership established, rejected fraud allegations concerning the identity of Rajjab, characterised the 1910 transaction as a lease within the meaning of Section 103, T.P. Act, rejected estoppel/acquiescence and decreed the suit with directions for removal of buildings or alternate possession upon payment.
- The learned Civil Judge affirmed ownership and genuineness of the executant's identity but held the 1910 transaction was not a lease under Section 105, T.P. Act; he nonetheless admitted the document in evidence to show the parties' legal positions and treated defendants' position as that of a lessee for practical purposes.
The Court then addressed the central contest in the second appeal: whether the 1910 deed should be ruled out of consideration. The respondents relied on several precedents; the Court considered each in turn and assessed their applicability:
- Certain authorities relied upon by respondents (Anand Sarup and Nand Ram) were regarded by the Court as not applicable to the facts before it.
- The Court examined the line of authority beginning with Nand Lal v. Hanuman Das where Blair J. held that a "qabuliat" (sarkhat) was not a lease within the meaning of the statutory provision then invoked (Section 107), and where the deed of 1898 was ruled of no legal value as a lease. The Court carefully reviewed the facts and reasoning in that chain of cases, including the opinions of Blair J., Edge C.J., Burkitt J. and Banerji J.
- The Court concluded that the interpretation placed on Nand Lal by Ismail J. in Mirza Mohammad Hasan v. Buddu (and later accepted by Bajpai J. in Ganga Sahai v. Badrul Islam) was not, in the present judge's view, supported by Nand Lal itself. The judge respectfully dissented from those later interpretations which sought to treat the qabuliat-like instrument as having effective legal value as a lease for the purpose of ejectment.
- Given the authority of Nand Lal (that certain qabuliat or sarkhat instruments do not constitute a statutory lease and may be ruled out of legal effect for the purposes of an ejectment suit), the Court held that on that authority the plaintiffs are not entitled to rely on the 1910 deed.
- The Court also noted that Pyare Lal v. Ram Swarup concerned compensation for use and occupation and thus raised different considerations; it was not controlling in an ejectment context.
Having ruled the 1910 deed out of consideration, the Court observed the procedural and practical consequence that the parties must be relegated to status quo ante. The Court then assessed the remaining material: the defendant's written statement asserted that the constructions were made with the consent of the erstwhile owners — a stand which, as the Court noted, was not repudiated by the plaintiffs. On that basis, in the absence of the 1910 deed being available as legal foundation for the plaintiffs' claim, the plaintiffs could not succeed in ejecting the defendant.
Holding and Implications
Core Ruling: The Court allowed the appeal, set aside the decrees of the Courts below, and dismissed the plaintiffs' suit with costs in all Courts.
Implications and direct consequences:
- The 1910 deed/agreement was ruled out of consideration for the purposes of this ejectment suit on the basis of the authority discussed (principally Nand Lal v. Hanuman Das and the Court's analysis of subsequent interpretations).
- Because the 1910 deed could not be relied upon by the plaintiffs, the parties were returned to the status quo ante; the defendant could not be ejected in these proceedings given the defendant's unrepudiated assertion that the constructions were made with the consent of the erstwhile owners.
- The Court expressly set aside the decrees below and dismissed the plaintiffs' suit with costs; no further points were pressed before the Court.
This summary is limited to and derived exclusively from the content of the provided opinion.
1. This is defendant's appeal arising out of a suit for possession over the site of certain houses specified in the plaint. The plaintiffs claimed to be the owners of the site under two sale deeds, executed by the erstwhile owners, Syed Mahmudul Husain and Mir Latafat Ali on 3rd September 1909 and 4th August 1910.
2. The plaintiffs' case was that on 16th August 1910, Rajjab, the father of the appellant, Shubrati, and a number of persons had executed an agreement in favour of the plaintiffs, whereby they agreed that they and their descendants would vacate the land and remove the building materials, when, ever called upon to do so, and they further agreed that on receipt of the price they would give the materials to the plaintiffs. The plaintiffs further contended that they gave the defendants notice in 1936 to vacate the land, but they have not done so yet. On these allegations, the present suit was instituted in the year 1940.
3. The defence, in brief, was a denial of the plaintiffs' title as also of the agreement. The bar of 12 years' limitation was also pleaded. The main contention of the appellant was that the agreement was a fictitious transaction secured from one Rajjab, who was not Rajjab the father of the appellant but was some fictitious person, that the house had been rebuilt at a cost of RS. 2000 and that the suit was barred by estoppel and acquiescence.
4. The learned Munsif held that the plaintiff's ownership was established. In the earlier litigation of 1988 the appellant had himself admitted the plaintiffs' title. He discarded the defence that the agreement was secured fraudulently from one Rajjab not the father of the plaintiff (sic defendant) but some other Rajjab. He held further that the transaction amounted to a lease within the meaning of Section 103, T.P. Act. The plea of estoppel and acquiescence was rejected by him. There was another plea raised in defence that the platform in dispute was an imam chowk. The learned Munsif rejected even this plea on the ground that that platform had been taken over by the Municipality under a scheme to construct a road from Farrukhabad to Makrandnagar. He decreed the suit and directed the defendants to remove the materials of the disputed buildings within four months of the date of the order and to restore the site to the plaintiffs free from the buildings and on their failure to carry out the directions within the time allowed, the plaintiffs "shall be entitled to possession over the site together with the buildings on payment of Rs. 586-4-0.
5. The defendants went in appeal and the learned Civil Judge has affirmed the decree of the learned Munsif. He has agreed with the trial Court that the plaintiffs were the owners of the site and that the agreement was a good agreement, not tainted by any fraud. He has distinctly found that Rajjab, who was the executant, was the father of the appellant, and not some other person. He, however, disagreed with the learned Munsif as regards the nature of the transaction of 1910. He held that it was not a lease within the meaning of Section 105, T.P. Act, but he held that it was admissible in evidence to show the legal position of the parties, and the defendant's position will as such be that of a lessee.
6. Defendant 12, Shubrati, has come before me in second appeal and it has been strenuously contended by his learned Counsel that the deed of 1910 should be ruled out of consideration altogether. The learned Counsel for the plaintiffs, however, contends that even though it may not be a formal document in the nature of a lease, it is still admissible in evidence to show the nature of the defendant's possession and that possession will, as the learned Civil Judge has found, be that of a lessee.
7. The learned Counsel for the respondents has relied upon Anand Sarup v. Chawwa ('16) 3 A.I.R. 1916 All. 241, Nand Ram v. Saraj Husain Khan ('38) 25 A.I.R. 1938 All. 42, Mirza Mohammad Hasan v. Buddu ('38) 25 A.I.R. 1938 All. 32 and Ganga Sahai v. Badrul Islam ('42) 29 A.I.R. 1942 All. 330. The first two cases have, to my mind, no application. The last two cases are no doubt, in some respects in his favour. The learned Judge in the earlier case in Mirza Mohammad Hasan v. Buddu ('38) 25 A.I.R. 1938 All. 32 referred to the case in Nand Lal v. Hanuman Das ('04) 26 All. 368 where in a suit for ejectment from a house of which the defendants were alleged to be tenants under a registered rent agreement it was found that the so-called agreement was only a sarkhat given by the defendants to the plaintiffs. Their Lordships held that the sarkhat or qabuliat did not amount to a lease within the meaning of Section 107, T.P. Act. I have carefully read the case in 26 ALL. 8686 but find nothing in it to support the respondents. I also find that the interpretation placed upon it by the learned Judge in Mirza Mohammad Hasan v. Buddu ('38) 25 A.I.R. 1938 All. 32 is, speaking with the utmost respect, not really borne out by it. The facts of that case were briefly these:
8. One Nand Lal and another brought a, suit for ejectment against the defendants from a house of which they alleged them to be their tenants under "a rent agreement dated and registered on 19th May 1882," stating that notice had been given in accordance with the terms of the lease. They also claimed arrears of rent to the extent of Rs. 304. The defence was that they had obtained a "fresh registered rent agreement" on 16th April 1898 and that the rent agreement" set up by the plaintiffs had been cancelled. The Court of first instance found that the defendants held under a "sarkhat" given by the defendant Hanuman to the plaintiffs with the plaintiffs' assent; under this document the defendants were entitled to hold for 20 years and could not be ejected. The claim for arrears of rent was decreed. The lower appellate Court dismissed the appeal. It found that the defendants' document of title was the "sarkhat" or "qabuliat" set up by them which had been duly registered with the knowledge and apparently with the assent of the plaintiffs. The plaintiffs appealed to the High Court on the ground that "in the absence of a document of the kind required bys. 107 of Act 4[iv] of 1882" upon the facts found the transaction in question did not amount to a lease in law and transferred no property to the respondents. Blair J. decreed the suit and held
(a) The defendants allege that they cannot be ejected because there is still in existence and in effect a lease under which they hold. The evidence which they produced of such a lease was a qabuliat signed and registered by one of them. It is found that plaintiffs were fully aware of the new qabuliat and gave consent by being present at the time of registration.
(b) The most emphatic oral agreement proved up to the hilt 6r; admitted by the plaintiffs would not make a lease within the meaning of para. 1. In the case of sales under Section 54 the same words are used, namely such transfer can be made except in certain cases, only by a registered instrument." Could it be contended for a moment that a document accepting property so said to be sold or devised by the owner of the property would amount to a registered instrument?
In this case there is no document purporting to transfer property. There is, however, something in the nature of a recital in the qabuliat to that effect, which may have been assented to by the plaintiffs ; but in my opinion that would not make a registered instrument within the meaning of Section 107, T.P. Act... I would decree the appeal and varying the decree of the lower Court, decree the whole of the plaintiffs' claim.
9. this judgment was based upon a judgment of Edge C.J. and Burkitt J. in Hem Chandra v. Ram Bharosay L.P.A. No. 72 of 1897 delivered on 16th March 1898. Banerji J. while not wholly differing from Blair J. struck a mild note of dissent on the ground - as I read the judgment - of expediency. Says he:
Having regard to the fact that it is a common practice in these Provinces to treat a qabuliat as the instrument creating a tenancy, and that a ruling such as that contended for by the appellants may unsettle title, I do not desire to express any opinion upon the first question raised in this appeal.
10. The learned Counsel for the appellant contends that the above does not amount to Striking even a mild note of dissent. Perhaps, he is right. The important thing to bear in mind is that the existence of the second deed, which was in the nature of a qabuliat and not a lease and which might have put the plaintiffs out of Court was not taken into consideration by Blair J. The present is a converse case. In that case it was the tenant who wanted to rely upon a deed and who was not allowed to do so by Blair J. in agreement with Edge C.J. and Burkitt J. In the present case, it is the landlord who wants to rely on a deed and has been allowed to do so by the Courts below. There is no dobut, in my opinion, that on the authority of Nand Lal, the plaintiffs are not entitled to do so. The learned Counsel for the respondents contends that Ismail J. in Mirza Mohammad Hasan v. Buddhu ('38) 25 A.I.R. 1938 All. 32 relied upon this case only f6r the proposition that the transaction did not amount to a lease within the meaning of Section 107, T.P. Act. I do not agree. The portion of the judgment which refers to the case in Nand Lal v. Hanuman Das ('04) 26 All. 368 winds up with the following sentence: "Nonetheless, their Lordships ejected the tenants from the house." It is manifest that Blair J. ruled out the deed of 1898 as of no legal value and in this view, he was supported by Edge C.J. and Burkitt J. Banerji J. also merely took it into account for certain reasons not strictly legal and did not think it proper to enter a dissent from Blair J. If this is so and I must, in view of what I have said above, hold that this is so, the very foundation of the judgment of the learned Judge in Mirza Mohammad Hasan v. Buddhu ('38) 25 A.I.R. 1938 All. 32 goes. I now come to the case in Ganga Sahai v. Badrul Islam ('42) A.I.R. 1942 All. 386. To my mind, if I may say so very respectfully, this case suffers from the same infirmity. Bajpai J. accepted the view of Ismail J. in the earlier case as being correctly based upon the case in Nand Lal v. Hanuman Das ('04) 26 All. 368. In the view which I have taken I must, with the utmost respect, dissent from Bajpai J. also. The other points in that case do not arise in this case.
11. Reliance has also been placed on Pyare Lal v. Ram Swarup ('44) 31 A.I.R. 1944 All. 221. Even the learned Counsel for the respondents admits that the facts of this case are different from those referred to be. fore. Besides their Lordships were not considering a case of ejectment. They were only dealing with a case of compensation for use and occupation of the land. I need hardly say that different considerations prevail in such class of cases. If the deed of 1910 is, therefore, ruled out of consideration, the parties will be relegated to status quo ante and the defendant cannot be ejected when as he distinctly says in his written statement - a stand which was not repudiated by the plaintiffs - that the constructions were made with the consent of the erstwhile owners. No other point has been pressed before me. I allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiffs' suit with costs in all Courts.
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