Patna High Court
Rampadarath Singh And Ors. vs Sohrai Koeri on 13 June, 1919
Equivalent citations: AIR 1920 PATNA 602
JUDGMENT Mullick, J.
1. This second appeal arises out of a compromise decree made by the Munsif of Aurangabad in 1913 in a rent suit.
2. The plaintiffs and the defendant in that suit were in dispute about the rent and area of a holding. There was also a dispute as to whether the rent was entirely payable in cash or whether it was payable partly in cash and partly in kind. The result of the compromise was that the plaintiffs agreed to take a lump sum of Rs. 64 on account of the rent of the years 1316 to 1319 F. 9, that in respect of future years the rent was fixed at Rs. 78 per year for ever in cash and that, the area of the holding was to be reckoned at 12 bighas.
3. The suit cut of which the present appeal arises is in respect of the rent of the years 1321 to 1323 F. S.
4. The plaintiffs seek to enforce the com-promise and claim Rs. 78 per annum. The defendant denies that the compromise was legal and admits only Rs. 43-2-0 per annum.
5. The District Judge has found that the cadastral survey record stating the rent to be entirely cash and to amount to Rs. 43-2-0 per annum, correctly shows the state of affairs existing immediately before the compromise, and he has declined to admit into evidence the compromise decree on the ground that it related to matters outside the scope of the suit and, therefore required registration.
6. The plaintiffs accordingly appeal.
7. Now in their behalf the first ground taken is, that the Fall Bench decision of this Court in Charu Chandra Mitra v. Sambhu Nath Pandey 46 Ind. Cas. 358 : 3 P.L.J. 255 : 4 P.L.W. 393 : (1918) Pat. 193 clearly shows that the learned District Judge was wrong. It has been held in that case that, where a compromise is effected between a landlord and a* tenant varying the terms of the contract previously existing between them in respect of property valued at more than Rs. 100, Section 17 of the Indian Registration Act does not operate if that compromise is embodied in a decree of Court, even though the compromise creates rights and liabilities extraneous to the suit. The only exception recognized by their Lordships is where the compromise creates a lease requiring registration under the provisions of the Registration Act.
8. Therefore, in the present case the view taken by the learned District Judge, which it must be noticed was arrived at before the Full Bench judgment, is incorrect.
9. The learned Vakil for the appellants next contends that the compromise was in fact not outside the scope of the suit inasmuch as it purported to settle that the proper rate of rent payable upon the holding was Rs. 78. This contention is not tenable in view of the finding of the District Judge that the rent was Rs. 43-2-0. This is a finding of fact which cannot be assailed in second appeal. Moreover, it does not appear from the terms of the compromise decree that there was any adjudication at all as to the rate of rent. The sum of' Rs. 64 decreed for the years 1316 to 1319 was a lump sum and there was no adjudication whatever as to the proper rate of rent-payable during these or any previous years. The contract to pay a rate of Rs. 78 was clearly foreign to the suit and the argument that the decree relating thereto is res judicata must fail.
10. But the learned Vakil for the appellant succeeds on his first point.
11. In reply it is contended on behalf of the defendant respondent that the compromise is subject to the provisions of Section 147A of the Bengal Tenancy Act. That is perfectly true. It is contended that the Full Bench decision, above referred to, related to a compromise recorded under Order XXIII of the Civil Procedure Code which is not applicable to a rent suit. In my opinion, there is no force in this argument because the terms of the first part of Section 147 A of the Bengal Tenancy Act are identical with the terms of Order XXIII, Rule 3, Civil Procedure Code, and the rule laid down by the Full Bench is of general application.
12. The learned Vakil for the respondent next contends that, even if this is so, Section 29 of the Bengal Tenancy Act renders the compromise illegal and invalid. It is contended that the defendant was both before and after the compromise an occupancy raiyat and that inasmuch as the compromise enhances his rent from Rs. 43-2-0 to Rs. 78, the contract is illegal and incapable of enforcement. This objection would be well grounded if it was in fact true that the status of the defendant had not been changed by the compromise. The learned District Judge, however, finds that the compromise has changed the defendant from an occupancy raiyat to a raiyat at a fixed rate of rent, go that Section 29 of the Bengal Tenancy Act would not apply to his case. The learned Vakil, however, relies upon the case of Narendra Bhusan Roy v. Banku Behary Ghosh 8 Ind. Cas. 825 and contends that the status of the defendant has not in fact changed. For this contention he relies upon that part of the compromise petition which places certain restrictions upon the right of the tenant to build and to excavate tanks.
13. The report of the case on which the learned Vakil relies does not put us in complete possession of the facts but if the learned Judge intended to rule that a tenant cannot become a raiyat at fixed rates if he places restrictions upon himself in the matter of building and making excavations. I would respectfully venture to differ. Beading the report, it would seem that the only point decided was, that in a pattah agreeing to let the holding at a certain rent from son to grandson, a restriction as to alienation and other matters was held to justify the construction that it did not create a tenancy at fixed rates. In the present case the document in express words creates a tenancy at a rate of Rs. 78 in perpetuity. The restrictions with regard to excavations and buildings are, in my opinion, not, void under any provisions of ' the Tenancy Act, and I must hold that the defendant is no longer an occupancy raiyat. The compromise, therefore, does not offend against the terms of Section 29 of the Bengal Tenancy Act and I hold that the Court in accepting it as a basis for the adjustment of the suit acted with jurisdiction.
14. In this connection it has been somewhat faintly suggested that the Court did not make any investigation into the legality of the compromise. The District Judge has, however, found that there is nothing to support this suggestion.
15. It is next contended that, even if the provisions of Section 29 were not contravened and the decree was made with jurisdiction, still Section 147A of the Bengal Tenancy Act does not empower the Court to record a compromise relating to matters extraneous to the suit. In my opinion there is no substantial difference between Rule 3 of Order XXIII, Civil Procedure Code, and Section 147A of the Bengal Tenancy Act in regard to the jurisdiction of the Court to record compromises; and the reasons given by the learned District Judge for holding that Section 147 A. requires compromises to be confined to the subject-matter of the suit are, in my opinion, inconclusive. There is no reason why the settlement of the disputes forming the subject matter of the suit should not be regarded as the consideration for the contract relating to matters extraneous to the suit. I see no reason why in a suit for rant for a particular period the parti-is cannot by consent, effect a change of status or rate of rent in regard to future years. The Tenancy Act does not expressly or by implication place any restrictions upon the parties in this respect.
16. Finally the learned Vakil for the respondent urges' that even if his other contentions fail, the compromise decree in this case was a lease which is liable to compulsory registration under Clause (d) of Section 17 of the Indian Registration Act.
17. Now we have very carefally read the terms of the compromise petition, and we do not find that it contains any of the ingredients necessary for a lease. No transfer of any interest in land is effected by the document. All that it does is to change the terms of the contract under which the tenant was already holding, and it clearly comes within the category of the documents described in Clauses (6) and (c) of Section 17 of the Registration Act.
18. In these circumstances it was open to the plaintiffs to sue upon the compromise and to tender the compromise decree as evidence. The defendant, not having succeeded in rebutting that evidence, must submit to a decree for the full amount of the claim. The suit must, therefore, be decreed in full with damages at 25 per cent. and costs throughout.
Jwala Prasad, J.
19. I agree to the order proposed by my learned brother. Although I do not want to commit myself to all the reasons given by him in support of the order made, it is sufficient to decree the appeal on the ground that the learned District Judge was under a misapprehension that the compromise petition, upon the basis of which the plaintiffs sued for a declaration of the rate of rent and for recovery of arrears thereof, was inadmissible without registration and hence could not be given effect to. The said compromise petition was incorporated into the decree of the Court and as such was exempted from registration under sub Section 2, Clause (vi) of Section 17 of the Registration Act, inasmuch as the terms in question in the compromise did not amount to a lease under Clause (d) of Sub-section 1 of the said section, but came under Clauses (6) and (c) of sub Section 1. A decree or order of a Court embodying the terms of an instrument coming under Clause (6) or (c) is exempted from registration. Only gifts under Clause (a) and leases under Clause (d) of Sub-section 1 are not so exempted.