Mallik, J.:— The suit that has given rise to the present appeal was one for recovery of possession of some lands on declaration of the plaintiff's title thereto. The allegations on which the plaintiff instituted the suit were briefly these: The plaintiff's brother, defendant 15, is the proprietor of the lands, and one Kalai and some other persons held the lands under defendant 15. Defendant 15 obtained a rent decree in respect of the property and in execution of that decree purchased the lands himself. Thereafter in July 1922 defendant 15 made a verbal settlement of the lands with the plaintiff. Thenceforth the plaintiff was in possession by settling the lands with some bargadars until she was resisted in her possession. The plaintiff therefore based her claim on verbal settlement obtained from defendant 15, her brother. The defence inter alia was that there was no settlement obtained by the plaintiff as alleged by her in support of her claim. The Court of first instance gave a decree to the plaintiff holding that the plaintiff was the benamidar of defendant 15, although it found that the story of a verbal settlement has not been substantiated. On appeal the learned District Judge held that the plaintiff was not entitled to a decree on the finding arrived at by the Court of first instance, inasmuch as it had never been the plaintiff's case that she was the benamidar of her brother, and as there was no evidence in the case from which it could be held that she was such a benamidar. The learned District Judge then proceeded to consider the question of verbal settlement as set out by the plaintiff. He held that as the plaintiff's case was that she was a tenure-holder, a registered document was compulsory for the lease which she set up, and that, as in the present case, there was no such document, he refused to consider the oral evidence adduced by the plaintiff to substantiate her story of a lease; and in that view the learned District Judge came to the conclusion that the plaintiff had not succeeded in establishing her title, and on that finding dismissed the plaintiff's suit. The plaintiff has appealed to this Court.
2. The first point taken on behalf of the appellant was that the learned Judge was wrong when he held that there was nothing on the record of the case to show that the plaintiff was the benamidar of her brother. In this connexion our attention was drawn to the statement made by the defendants in para. 6 of their written statement. We have been taken through this paragraph, but we do not find in it any clear case of benami set up. The statement made in this paragraph may be taken only to mean that defendant 15 was at the back of the plaintiff and had instigated the plaintiff to institute the present suit. The second contention urged on behalf of the plaintiff appears however to me to have more substance in it. The learned Judge, as I have stated above, was of the opinion that in the present case a registered instrument was absolutely necessary, and in support of that view he relied on the case of Kasiswari Debi v. Hari nath . [1917] 40 I.C 100.. But there have been several other cases among which I may mention the case of Jagadish Chunder Sanyal v. Lal Mohan Poddar . [1911] 7 I.C 864. and Umrao Bibi v. Mahomed Bajabi . [1900] 27 Cal. 205, where it has been held that leases in respect of agricultural lands would come under the operation of Section 117 of the Transfer of Property Act, and a registered instrument would not be necessary.
3. It was said that in the present case there was nothing to show that the lease set up by the plaintiff was in respect of agricultural lands. I am unable to accept this view of the matter. The plaintiff in para. 2 of her plaint stated that she had taken settlement of the lands and was in possession of the same by settling them with bhagadars. This, to my mind, was an indication clear enough to show that the lease was in respect of agricultural lands; and if that was so, a registered instrument was not, in my opinion, necessary under the law. If no registered instrument was necessary under the law, the learned District Judge was, in my opinion, wrong when he decided the question of lease as raised by the plaintiff simply on the ground that there was no registered instrument in the case. The learned Judge ought to have considered the oral evidence adduced by the plaintiff in support of her case of verbal settlement. As the learned Judge did not do so, the proper order which, in my opinion, we should make in the present appeal is that the appeal will be allowed, the decree of the lower appellate Court set aside and the appeal sent back on remand for determination in accordance with law after a consideration of the oral evidence that was adduced by the plaintiff to substantiate her story of verbal lease as well as of other evidence that then may be on the record on the point. The costs will abide the result.
Pearson, J.:— I agree.
K.N/R.K
4. Order accordingly.