Jainarain Choudhary v. Biseswar Prasad — 1953 DIGILAW 111 (PAT)

Judgment Choudhary, J. 1. This appeal by the plaintiff is directed against the judgment and decree of the Subordinate Judge, 2nd Court, Muzaffarpur, passed in Money Appeal No. 4 of 1948, affirming the judgment and decree of the Munsif of Hajipur passed in title suit No. 175 of 1946, whereby he dismissed the plaintiffs suit. 2. On 28-4-1940, Biseshwar Prasad defendant No. 1, Singheshwar Prasad, husband of defendant No. 5 and Umapati Prasad, another brother of defendant No. 1 gave their 7 annas 13 gandas milkiat interest and 1 bigha 3 kathas 14 dhurs of zeraif land containing trees in village Bhatauli, tauzi No. 3686 in zarpeshgi to the plaintiff for Rs. 5000 by three registered bonds, Exts. 6 to 6(b). For the sake of convenience in the redemption three registered bonds were taken, namely, Ex. 6 for a sum of Rs. 1500, the due date of payment in Which was the 30th Baisakh, 1348 Fasli, Ex. 6(a) lor Rs. 1500, the due date of payment being the 30th Bhado, 1348 Fasli and Ex. 6(b) for Rs. 2000, the due date of payment being the 30th of Baisakh, 1349 Pasli. The plaintiff came in possession of the zarpeshgi land. Subsequently on 28-8-1940, defendant, No. 1 and Singheshwar Prasad, husband of defendant No. 5, took a thika lease of the zarpeshgi land on an annual rent of Rs. 475 by means of registered kabuliat and patta for two years from Baisakh, 1347 to Baisak 1349 Pasli. It may be noted that the third mortgagor Umapati Prasad, brother of defendant No. 1, was not a party to this lease. The lessees came in possession of the zarpeshgi properties as the thikadar. The plaintiffs case is that after the expiry of the thika the defendant No. 1 and the husband of defendant No. 5 held over and remained in possession on the same term. They not having paid anything towards the rent of the thika lease, the plaintiff brought a suit for recovery of Rs. 2850 being rent for six years from 8 annas kist of 1347 Pasli to 3 annas kist of 1353 Fasli plus a sum of Rs. 1011/12/- as interest at the rate of 12 per cent per annum. The plaintiff also made an alternative prayer that if for any reason the patta and kabuliat be deemed to be illegal, then in that case a decree for Rs. 1011/12/- as interest at the rate of 12 per cent per annum. The plaintiff also made an alternative prayer that if for any reason the patta and kabuliat be deemed to be illegal, then in that case a decree for Rs. 2850 principal and Rs. 1011/12- interest, may be passed in his favour on account of the use and occupation of the properties in suit by the defendants. It may be noted here that defendants 2 to 4 are the minor sons of defendant No. 1. The suit was contested by defendant No. 1 and his defence, inter alia, was that the plaintiff had no cause of action, the suit was bad for defect of parties, it was barred by limitation, the defendants were not in possession after the expiry of the lease, they did not hold over and that the rent for the thika period, namely, from Baisakh 1347 to Baisakh 1349 Fasli. had already been paid. The trial court held that the suit was not bad for defect of parties, no valid lease was created due to non-compliance of the provisions of Section 107, T. P. Act and, as such, it was not enforceable under the law, that the defendants were in fact in possession of the property in question for the period in suit, but since the lease itself was invalid, they could not be said to be holding over according to law. He also considered whether the plaintiff was entitled to claim interest on the mortgage itself, but held that no decree for such interest could be passed as Umapati was not a party to the suit. He, however, disbelieved the plea of payment raised by the defendants and also held that the suit for thika rent was barred by limitation and that the suit for damages and interest would lie for three years only. On the view that he took that the defendants did not, in law, hold over the land in suit, he did not think the plaintiff to be entitled to get a decree for use and occupation. Hence he dismissed the plaintiffs suit. The plaintiff preferred an appeal against the decree of the Munsif. On the view that he took that the defendants did not, in law, hold over the land in suit, he did not think the plaintiff to be entitled to get a decree for use and occupation. Hence he dismissed the plaintiffs suit. The plaintiff preferred an appeal against the decree of the Munsif. Before the appellate court it was conceded on behalf of the plaintiff-appellant that no valid lease as contemplated under Sec.107, T. P. Act was created and similarly it was conceded on behalf of the defendants-respondents that the findings of the learned Munsif that there was no defect of parties, that the defendants were in possession of the zarpeshgi property for the period in suit and that the defendants did not pay anything towards the rent were correct, and, therefore, the court of appeal below did not think it necessary to discuss those points in his judgment. The only point that was agitated in the court of appeal below on behalf of the plaintiff was that he ought to have been given a decree for the thika rent, though not as rent, but as damages for use and occupation. The lower appellate court held that, after the expiry of the due dates of the bharna money, the plaintiff could not maintain the suit for rent or for damages for use and occupation and that his only remedy was by a suit under Section 68, T. P. Act, no decree even for interest on the mortgage money could be passed as Umapati was not a party to the suit and that the suit for use and occupation from 8 annas kist of 1347 Fasli to 8 annas kist of 1350 Fasli was barred by limitation. It may be noted here that the learned advocate appearing for the appellant in the court below conceded also on the point that the suit was barred by three years limitation. On these findings the lower appellate court affirmed the judgment and decree of the trial court and dismissed the appeal. Against the judgment and decree of the lower appellate court the plaintiff has come up in appeal to this Court. 3. On these findings the lower appellate court affirmed the judgment and decree of the trial court and dismissed the appeal. Against the judgment and decree of the lower appellate court the plaintiff has come up in appeal to this Court. 3. The thika lease taken by defendant No. 1 and the husband of defendant No. 5 was created by execution of a registered kabuliat by those two persons in favour of the plaintiffs well as by execution of the corresponding patta by the plaintiff in their favour, but the defect was that the plaintiff did not sign the kabuliat executed by the defendants and the defendants did not sign the patta executed by the plaintiff. Sec.107, T. P. Act provides: "Where a lease of immovable property is made by a registered instrument, such instrument, or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee." The provisions of this section thus not having been complied with, it was held by the courts below that the lease was invalid and Mr. B. N. Mitter for the appellant has conceded before me that that finding is correct in law. Mr. Mitter, however, has argued that though the said kabuliat and patta did not create any valid lease, they were admissible in evidence to show as to when and in what capacity the defendants entered into possession of the property in suit in order to give to the plaintiff a decree for use and occupation, and they may also be taken into evidence to give an indication as to the measure of damages that may be awarded to the plaintiff. In support of his contention he has relied on the Full Bench decision of -- Sheo Karan Singh V/s. Parbhu Narain Singh, 31 All 276 (FB) (A). In that case His Highness the Maharaja of Banaras sued for arrears of rent relying on a registered kabuliat executed by the defendants on the faith of which they were let into possession of the property in question. No lease was, however, executed by the Maharaja, As a mere kabuliat without there being a lease by the landlord was not sufficient to constitute a contract, it was argued in that case that no decree for rent on the basis of that kabuliat could be passed in favour of the plaintiff. No lease was, however, executed by the Maharaja, As a mere kabuliat without there being a lease by the landlord was not sufficient to constitute a contract, it was argued in that case that no decree for rent on the basis of that kabuliat could be passed in favour of the plaintiff. Their Lordships held that the claim of the plaintiff could be treated as one for compensation for the use and occupation of the land. Their Lordships also considered the kabuliat as a good piece of evidence for determining the measure of compensation that might have to be awarded for use and occupation, on the basis of the amount of rent fixed by that document. This case was followed in the Full Bench decision of the Lahore High Court in -- Mohan Lal V/s. Ganda Singn, AIR 1943 Lah 127 (FB) (B). In that case a deed of mortgage with possession of a certain house was executed by one Jhanda Singh in favour of the plaintiff Mohan Lal and on the same day Jhanda Singh executed a kabuliat in favour of the mortgagee-plaintiff Mohan Lal agreeing to pay Rs. 8 per mensem as rent to the mortgagee. The rent having fallen into arrears, the plaintiff brought a suit for its realization. Both the trial court and the lower appellate court held that as. the lease was not valid due to non-compliance of Sec.107, T. P. Act, it could not be looked into for asking a decree in favour of the plaintiff. It was held by the Pull Bench that though the lease was invalid due to non-compliance of the provisions of Sec.107, T. P. Act, yet it contained an admission or an acknowledgment by the person attempted to be made liable and should be the very best evidence that one can possibly have as to the oral agreement of lease, particularly when it was well known that these documents usually come into existence only after agreements between lessors and lessees are arrived at and the terms of the tenancy are settled . Their Lordships, therefore, took the view that the kabuliat could be looked into for the purpose of giving a decree to the plaintiff by way of compensation for use and occupation, as had been held by the Full Bench in -- 31 All 276 (A). Their Lordships, therefore, took the view that the kabuliat could be looked into for the purpose of giving a decree to the plaintiff by way of compensation for use and occupation, as had been held by the Full Bench in -- 31 All 276 (A). In the Transfer of Property Act by Sir D, P. Mulla, third edition, at p. 631, there is an important commentary on "use and occupation". It runs as follows : "A tenant at will is not liable to pay rent because there has been no demise to him. He is not liable for mesne profits or damages like a trespasser because his occupation is permissive. But he is liable to pay compensation for use and occupation. If the rent is fixed, or there is an express agreement as to rent, the amount fixed or agreed, is recoverable, the amount so fixed or agreed being evidence of the quantum payable. If there is no express agreement that he should pay, the mere fact of this occupation of the land of another implies an agreement to pay reasonable compensation." 4. Mr. Adityanarain Lal on behalf of the respondents, on the other hand, has contended that the lease being invalid in law could not be looked Into for any purpose and, at any rate, no decree could be passed in favour of the plaintiff for use and occupation on the basis of that lease. He has, however, not been able to place before me any authority directly on the point in support of his contention. What he has argued is that the due dates of the zarpeshgi and of the lease having expired, the parties were placed in their original position of mortgagor and mortgagee and the only remedy that the plaintiff had was to bring a suit under Sec. 68, T. P. Act and not a suit for use and occupation. I shall come to this point later on. I shall come to this point later on. But so far as the point whether the plaintiff is entitled to a decree for compensation for use and occupation or not is concerned, I quite agree with the view taken in the aforesaid Allahabad and Lahore Pull Bench decisions and hold that the kabuliat and the patta could be looked into for the purpose of granting a decree to the plaintiff for compensation for use and occupation for which he would be entitled under the law, the defendants having been held to be in possession of the zarpeshgi property for the period in suit. 5. In support of the contention that after the expiry of the due date of the zarpeshgi and the term of the lease the only remedy available to the plaintiff was to sue under Sec. 68, T. P. Act. Mr. Adityanarain Lal has relied on the case of --Bishun Prasad Ram V/s. Anup Narain Singh, AIR 1949 Pat 166 (C). The courts below also relied on this case for holding that the plaintiff could not maintain the present suit and the only remedy lay under Sec. 68, T. P. Act for the mortgage money and interest thereon. In that case certain houses belonged to the defendant which were given to the plaintiff in rehan by virtue of a registered instrument of mortgage dated 9-5-1928. The plaintiff was not given possession of the houses on the understanding that the defendants were to hold and occupy them as tenants of the plaintiff-mortgagee on payment of a monthly rent of Rs. 2 on the basis of an agreement arrived at between the parties evidenced by a kabuliat executed by the defendants. The rehan was for a term of 5 years from the month of Asarh 1335 to the month of Jeth 1340 Pasli, while the kabuliat was for a term of 4 years from the month of Asarh 1335 to the month of Jeth 1339 Fasli. On expiry of the term of the tenancy, it was alleged that the defendants were allowed to remain in the house on payment of en enhanced rent of Rs. 5 per month. The defendants having failed to pay the agreed rent from the month of Aswin 1341 Fasli up to the month of Jeth 1349 Fasli, the plaintiff served them with a notice to quit. 5 per month. The defendants having failed to pay the agreed rent from the month of Aswin 1341 Fasli up to the month of Jeth 1349 Fasli, the plaintiff served them with a notice to quit. The plaintiff, therefore, claimed to recover possession of the houses as well as for recovery of the aforesaid sum in lieu of arrear of rents due with interest. His Lordship Ray, J. observed as follows : "If the plaintiff be entitled to maintain the present suit and to obtain the relief prayed for, it would amount to grant him a decree to which he can hardly be entitled under the mortgage ........ It is ordinarily to be considered that the creation of the lease in favour of mortgagor is by way of fulfilment of the terms of the mortgage and failure to fulfil the conditions of such a lease would always amount to failure on the-part of the mortgagor to discharge the statutory obligation of maintaining the mortgagee in undisturbed possession of the property mortgaged. Such failure, therefore, will give rise to such-statutory remedies as are available to the mortgagee as such. It would, at any rate, be absurd to conceive that the relationship of landlord and tenant would subsist even after the expiry of the term of the mortgage." It was held that his remedy was by a suit under Sec. 68, Clause (d), T. P. Act and in that view of the matter the suit was dismissed. But in that case, however, it appears that there was no stipulation to continue possession of the mortgaged property after the expiry of the due date of payment as will appear from the following observation of his Lordship: "Had it been shown to me that in terms of the deed of mortgage the plaintiff was entitled to recover possession even after expiry of its term or that he was entitled to recover interest on the sum advanced, I would have granted him a decree." Thus it seems to me that if there had been such a stipulation in the mortgage, probably his Lordship might have taken a different view of the matter. In the present case, however, there is a clear stipulation in the zarpeshgi (Exts. In the present case, however, there is a clear stipulation in the zarpeshgi (Exts. 6 to 6 (b)) that after the due date of the expiry if the money is not paid the mortgagee will continue to remain in possession of the mortgaged property. That being so, the case of -- AIR 1949 Pat 166 (C) does not apply to the facts on the present case. The stand that the defendants seem to have taken in this case appears to me to be that the zarpeshgi and the lease both formed part of the same transaction and, therefore, the claim for rent or compensation for use and occupation amounted to a claim for interest which could be recovered only by actign taken on the mortgage. But on considering the documents in question it appears to me that they do not form part of the same transaction. The mortgagors are three brothers, namely, Biseshwar Prasad, defendant No. 1, Singheshwar Prasad, husband of defendant No. 5 and Umapati Prasad, another brother of defendant No. 1, whereas the lease is taken only by Biseshwar Prasad, defendant No. 1, and Singheshwar Prasad, husband of defendant No. 5. Umapati had nothing to do with the lease. The zarpeshgi deeds were executed on 23-4-1940, whereas the lease was executed for four months after on 28-8-1940. In the zarpeshgi deeds there is no stipulation for any rate of interest on the principal money for the payment of which the properties were given in zarpeshgi. According to the deed, whatever interest might be for the principal money was to be satisfied by the mortgagee remaining in possession of the mortgaged property. Therefore, it cannot be said that the rent fixed under the lease was equivalent to the amount of the interest that accrued on the mortgage money. These are some of the tests from which an inference can be drawn whether the mortgage and the lease were part of one and the same transaction or not. Prom the facts stated it is clear to me, and I come to the conclusion, that the mortgage and the lease were not part of the same transaction. The argument that the only remedy for the plaintiff was to sue for the mortgage money under Sec. 68, T. P. Act also seems to have no force. Prom the facts stated it is clear to me, and I come to the conclusion, that the mortgage and the lease were not part of the same transaction. The argument that the only remedy for the plaintiff was to sue for the mortgage money under Sec. 68, T. P. Act also seems to have no force. As already indicated, Umapati had nothing to do with the lease and if the possession of the mortgagors Biseshwar and Singheshwar be taken to amount to dispossession of the mortgagee, it will not be dispossession by the entire body of the mortgagors and I do not think on what basis the mortgagee can institute a suit against Umapati for recovery of the mortgage money. 6. On consideration of the facts and authorities I am of opinion that the plaintiff is entitled to get a decree for compensation for use and occupation at the rate of Rs. 475/- per year as evidenced by the lease which may have to be taken into evidence for the purpose of determining the measure of damages to be awarded. 7. The next question is one of limitation. It has been conceded by Mr. B. N. Mitter that the registered lease having been held to be invalid, Article 116, .Limitation Act will have no application inasmuch as the claim would not be based on the basis of the registered instrument which has been found to be invalid in law. He, however, submits that there is no specific article applicable to this case and, therefore, the residuary Article 120 will have to be applied, according to which the period of limitation is six years, and his entire claim, therefore, is within time. In support of his contention he has relied on a passage which occurs in -- Mahomed Saddiq V/s. Muhammad Nuh, AIR 1930 All 771 at p. 775 (D). It runs as follows : In the present case we have a registered document and have applied Article 116. Even if Article 116 were not applicable, the suit not being one for refund of the price paid but for damages, for the loss suffered, it may be a point worth considering whether the claim would be outside Article 97, and, therefore, within the residuary Article 120. In either case we are clearly of opinion that the six years rule of limitation applies and not the three years rule". In either case we are clearly of opinion that the six years rule of limitation applies and not the three years rule". It is clear that their Lordships did not give any definite decision on the point. They were only dealing with the alternative argument that if Article 116 will not apply, Article 120 may apply because in applying either of the two articles the period of limitation would be six years. Mr. A. N. Lal contends that the case can very well come under Article 115, Limitation Act. This article, so far as is relevant for the present case, provides that the limitation for a suit for compensation for the breach of any contract, express or implied, not in writing registered and not otherwise specially provided for is three years from the date when the contract is broken. When a person occupies the land of others on the basis of a lease, which is found to be invalid, an implied contract will be presumed to have existed between the parties that the person who occupies the land will pay compensation to the owner of the land for use and occupation. In that view of the matter the claim in the present suit for compensation for use and occupation is a claim for compensation for breach of an implied contract not in writing registered. In the Law of Limitation by K. J. Rustomji, 1938 edition at P. 964 there is a commentary on "use and occupation" which runs as follows : "When a suit is not for rent but for compensation for use and occupation of land, Article 115 applies. The action for use and occupation does not suppose any lease: it is enough that defendant used and occupied the premises by plaintiffs permission. The claim is based on an implied contract to pay for use of the land, and the action does not lie against a mere wrong-doer or trespasser. The article applicable is, therefore, 115." In my opinion, therefore, the claim is governed by Article 115, Limitation Act and the period of limitation for, a suit for compensation for use and occupation will be three years. The article applicable is, therefore, 115." In my opinion, therefore, the claim is governed by Article 115, Limitation Act and the period of limitation for, a suit for compensation for use and occupation will be three years. The claim of the plaintiff, as held by the courts below, is thus barred for 8 annas kist of 1347 to 8 annas kist of 1350 Fasli and he is entitled to recover compensation for the remaining period, namely, 8 annas kist of 1350 Fasli to 8 annas kist of 1353 Fasli. 8 The last point to be considered is with respect to interest. As the lease has been held to be invalid and the point in question has been consi-dered on the basis of implied contract, it must be taken that there is no contract stipulating any amount of interest to be paid on the claim. In --B. N. Railway Co. Ltd. V/s. Ruttanji Ramji, AIR 1938 P. C. 67 (E), it was held that interest for the period prior to the date of the suit may be awarded if there is an agreement for the payment of interest at fixed rate. Following this case it was held by a Division Bench of this Court in -- Masood Ahmad V/s. Bikan Mahuri, AIR 1941 Pat 6 (F), that claim to interest up to the institution of the suit cannot be allowed when it is not based on any contract. In -- Gobind Ram V/s. Hari Mohan Singh, AIR 1934 Lah 175 (G), it was held that rent due is a debt no doubt, but damages for use and occupation is not a liquidated sum and hence interest cannot be allowed. A similar view was taken in -- Gopalan Nair V/s. Dist. Board, Malabar, AIR, 1933 Mad 704 (H), in which it was held that in the absence of a contract interest cannot be granted on equitable principles. It, therefore, appears that the plaintiff is not entitled to any interest on his claim up to the date of the institution of the suit. The court has, however, got discretion to award interest after the institution of the suit till realization of the money and in my opinion the plaintiff, should be awarded interest at six per cent. per annum from the date of the suit till the date of realization of the money that may be decreed in his favour. 9. The court has, however, got discretion to award interest after the institution of the suit till realization of the money and in my opinion the plaintiff, should be awarded interest at six per cent. per annum from the date of the suit till the date of realization of the money that may be decreed in his favour. 9. In the result, the appeal succeeds in part and the judgment and decree of the court below are modified to this extent that the plaintiff will get a decree at the rate of Rs. 475 per annum for compensation for use and occupation against the defendants for 8 as. last of 1350 Fasli to 8 as. kist of 1353 Fasli with interest at six per cent. per annum from the date of the institution of the suit till the date of payment. In the circumstances there will be no orders as to costs.