Patna High Court
Briksh Koeri And Anr. vs Awadh Bihari Lal on 9 March, 1960
Equivalent citations: AIR1961PAT308, AIR 1961 PATNA 308
Author: V. Ramaswami
Bench: V. Ramaswami
ORDER
1. In Small Cause Court Suit No. 481/ 275 of 1956 the plaintiff claimed thika rent with regard to two Mahua trees and a Mango tree for a period of three years at a jama of Rs. 25/- for each tree per year, Similarly, in Small Cause Court Suit 490/282 of 1956 the plaintiff claimed thika rent for three years with regard to three mango trees at a jama of Rs. 20/- for each tree per year from the defendant of that suit. In both the suits the defence was that no lease was taken of the trees. It was also contended that the Kabuliyats, exhibits 1 and 1 (a), upon which the plaintiff relied, were unregistered instruments and so should not have been admitted in evidence in view of the provisions of Section 49 and Section. 17 (1) (d) of the Indian Registration Act. The lower Court rejected the argument of the defendants and gave a decree in favour of the plaintiff for the amount claimed in both the Small Cause Court Suits.
2. In support of these two applications the main contention put forward by learned Counsel is that the Small Cause Court has committed an error of law in having taken the two unregistered Kabuliyats, exhibits 1 and 1 (a), into evidence in order to prove the claim for rent of the plaintiff. Exhibit 1, the Kabuliyat, upon which the Small Cause Court Suit No. 481/275 of 1958 is based, is in the following terms :
"Sahi Brichh Koiri tin penr mahua wo am 75/-pachhatar repeya salana ke hisab se (tinsala -- torn) ka likha wo is ke sabut me apne anguthe ka nisan banaya Ba: Sant Prasad Misra ta: 5 Poos 1360 Fasli.
Li: kabuliyat Brichh Koiri wald Ghamandi Koiri mo: Sa: Alinagar Pr. Rohtas Tha. Sasaram Da: Tilothu ke hun. Age malik Sri Thakur Awadh Bihari Lal Jee motwalli Prosattam Lal Sa. Sasaram Mahale Mahajantoli malik mauza Alinagar ke hain. In se waste tome fal wo benchne ko mahua 2 do penr wo ek penr ami 1, Ha tin sal waste 1860 se jiske malgujari fee darkhat 25/- pachis rupaye ke hisab se mo: 75/- pachhattar Ru. Sri Thakur Malik ko 30 Baisakh har san ada kar denge gar adae kari-men hila hawala karen to kanun mo: sud kharcha adalat ke dendar honge wo hasab zail plot men darkhatan ko apne kabje men dar laenge malgujari kist par ekmust ada kar denge is men koi hila hawala nahi karenge is waste kabuliyat tin sala likha ke wakt par kam awe waje rahe ke ye dar-khan malik ka hai wo malik ne nasab karaya tha. Ta: 5 Poos 1360 Sa:
"Khata No Plot No. Darkhata Jins-kism Malgujari
-dad darkhat
28 men 237 men 1 Mahua 75/- pach-
82 men 1 Mahua hatar ru:
29 men 102 men 1 Am
pachhim
Katik Sant Prasad Misra."
3. The kabuhyat, exhibit 1 (a), relied upon by the plaintiff in Small Cause Court Suit No. 490/282 of 1956, reads as follows:-
"Sahi Jagan Koiri Sa: Alinagar tin penr am ka 60/- sath rupya salana ke hisab se tin 3 sala ka likha wo iske sabut men apne anguthe ka nisan banaya ba: Sant Prasad Misra Ta: 5 Poos San 1360 Fasli., Li: Kabuliyat Jagan Koiri Wald Godhan Koiri Sa. Alinagar Pr. Rohtas Tha, Sasaram Da: Tilothu ke hun. Age Malik Sri Thakur Awadh Bihari Lal Jee Motwalli Prasottam Lal Sa: Sasaram mahale Mahajantoli malik mauza Alinagar ke hain. In se waste torne benchne fal ko tin penr 3 am liya tin sal waste 1360 Fasli se jiska ma!gujari fee darkhat 20/- bis repeya ke hisab se mo: 60/ sath rupe Sri Thakur Jee malik ko 30 Baisakh har san ada kar denge gar adaekari men hila hawala karen to kanun motabik sud kharcha adalat ke dendar honge to hasab zail plot men darkhatan ko apne kabje men dar laenge malgujari kist par ek must ada kar denge is men koi hila hawala nahin karenge is waste yad-dast kabuliyat tin sala likha ke wakt par kam awe waje rahe ke ye darkhatan malik ka hai wo malik ne nasab karaya tha Ta: 5 Poos 1360 Fasli.
Khata No. Plot No. Taedad darkhat Kism darkhat Malgujari 29 men.
102 men.3
Am.
60/- Sath ru:
Katib Sant Prasad Misra."
4. In our opinion the defendants were licensees so far as the land is concerned; but so far as the right to pluck the mango fruits or the mahua flowers is concerned, the right of the defendants was in the nature of immoveable property because it was a benefit arising out of land, Section 105 of the Transfer of Property Act defines a lease of immoveable property as "a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in Consideration of a price paid or promised, or of money".
According to Section 3 of the Transfer of Property Act, immoveable property does not include standing timber, growing crops or grass, but there is no definition of immoveable property in the Act itself. Now Section 3 (25) of the General Clauses Act defines "immoveable property" as inclusive of land, benefits arising out of land and things attached to the earth. The question at issue in the present case, therefore, is whether the right of plucking mango fruits or Mahua flowers conferred upon the defendants by the kabuliyats for a period of three years is a benefit arising Out of land within the definition of immoveable property given in Section 3 (25) of the General Clauses Act. The law on this point is summarised by Lord Coleridge, C. J., in Marshall v. Green, (1875) 1, C. P. D, 35 : (45 LJ CP 153), where he has cited the following passage from the notes of Sir Edward Vaugham Williams to the case of Duppa v. Mayo, Wms. Saunders, 1871 edition, p. 394 :
"The principle of these decisions appears to be this, that wherever at the time of the contract it is contemplated that the purchaser should derive a benefit from the further growth of the thing sold, from further vegetation and from the nutriment to be afforded by the land, the contract is to be considered as for an interest in land; but where the process of vegetation is over, the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, and the contract is for goods."
5. This view is also borne out by the Madras High Court in P. Venugopala Pillai v. V. Thirunavukkarasu, AIR 1949 Mad 148, where it was held that the right to tap the cocoanut trees and obtain toddy was in the nature of immoveable property because it was a benefit which arose out of land and, consequently, the right of tapping the coconut trees and obtain toddy was a right in the nature of a lease hold right for agricultural purposes. Applying the principle to the present case we are of opinion that the right of the defendants embodied in the two kabuliyats, Exs. 1 and 1 (a), of plucking the mango fruits or plucking the Mahua flowers is in the nature of a benefit arising out of land and so the two transactions entered into between the parties were transactions of a lease for agricultural purposes for a period of three years in each case.
If this view is correct, it follows that the two documents exhibits 1 and 1 (a), were required to be registered under Section 17 (1) (d) of the Registration Act, and in the absence of such registration the two documents cannot be admitted in evidence for the purpose of proving the amount of rent claimed by the plaintiff. This view is borne out by a decision of the Calcutta High Court in Ali Hossain v. Jonabalt Mondal, 62 Cal LJ 534 : (AIR 1936 Cal 770), where it was pointed out that a tenancy in respect of an agricultural land can be created by an oral agreement; but if an instrument is at all executed for the purpose, it has to be registered in accordance with the provisions of Section 17 (1) (d) of the Indian Registration Act, and if not so registered, is inadmissible in evidence by reason of Section 49 of the Indian Registration Act.
It was further held in thai case that in a contract for the sale of growing straw, the purchaser derives a benefit from the further growth of the thing sold, from further vegetation and from the nutriment to be afforded by the land and in that way acquires an interest in land and a kabuliyat embodyig such a contract required registration. The same view has been expressed by the Madras High Court in Sivasubramania Thevar v. Theertha-pathi, AIR 1933 Mad 451 and also in Rajendra Singh v. Hulasdass, ILR 1944 Nag 704 : (AIR 1945 Nag 69).
In the Nagpur case it was pointed out that no oral evidence was admissible under Section 91 of the Indian Evidence Act to prove the rent payable under a lease reduced to writing and, therefore, the lessor cannot sue his lessee for the recovery of agricultural rent on the basis of an unregistered lease for more than one year. It was also pointed out in that case that a lease in writing of agricultural land for more than one year is compulsorily registrable under Section 17 of the Indian Registration Act, and, if unregistered, is not admissible in evidence under Section 49 of the Act to prove the lease. In Our opinion these decisions lay down the correct law on the point.
It follows therefore that the plaintiff in the two Small Cause Court suits is not entitled to get a decree for the thika rent for the years in question on the basis of the two Kabuliyats, exhibits 1, and 1 (a), and since no oral evidence is admissible to prove the terms of these it is manifest that the plaintiff is not entitled to get a decree in either of these two Small Cause Court suits. For these reasons we hold that these two applications should be allowed, the decree granted to the plaintiff in the two Small Cause Court suits should be set aside and both the Small Cause Court suits should be dismissed. Parties will bear their costs throughout.