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PATNA HIGH COURT
Choudhary, J.
Jainarain Choudhary
Versus
Biseswar Prasad
Appeal From Appellate Decree No. 902 of 1950 ;
Decided On : JULY 23, 1953
LANDLORD AND TENANT - LEASE - INVALIDITY - USE AND OCCUPATION - COMPENSATION - LIMITATION - INTEREST - Transfer of Property Act, 1882, Section 107 - Limitation Act, 1908, Articles 115, 116, 120.
Fact of the Case:
Plaintiff, a mortgagee, brought a suit against defendants, mortgagors, for recovery of rent or damages for use and occupation of the mortgaged property after the expiry of the due date of the mortgage and the term of the lease. The trial court dismissed the suit holding that the lease was invalid due to non-compliance with Section 107 of the Transfer of Property Act, 1882, and that the plaintiff's only remedy was to sue under Section 68 of the Act. The lower appellate court affirmed the trial court's decision.
Finding of the Court:
The High Court held that the lease was invalid due to non-compliance with Section 107 of the Transfer of Property Act, 1882, but that the plaintiff was entitled to compensation for use and occupation of the mortgaged property. The court found that the mortgage and the lease were not part of the same transaction and that the plaintiff's only remedy was not to sue under Section 68 of the Act. The court also held that the claim for compensation was governed by Article 115 of the Limitation Act, 1908, and that the plaintiff was entitled to interest at six percent per annum from the date of the institution of the suit till the date of realization of the money decreed in his favor.
Issues: 1. Whether the lease was invalid due to non-compliance with Section 107 of the Transfer of Property Act, 1882? 2. Whether the plaintiff was entitled to compensation for use and occupation of the mortgaged property? 3. Whether the mortgage and the lease were part of the same transaction? 4. Whether the plaintiff's only remedy was to sue under Section 68 of the Transfer of Property Act, 1882? 5. Whether the claim for compensation was governed by Article 115 of the Limitation Act, 1908? 6. Whether the plaintiff was entitled to interest on the claim?
Ratio Decidendi: 1. The court held that the lease was invalid due to non-compliance with Section 107 of the Transfer of Property Act, 1882, as it was not executed by both the lessor and the lessee. 2. The court held that the plaintiff was entitled to compensation for use and occupation of the mortgaged property, as the defendants were in possession of the property for the period in suit. 3. The court held that the mortgage and the lease were not part of the same transaction, as the mortgagors were three brothers, while the lease was taken by only two of them, and the zarpeshgi deeds did not stipulate any rate of interest on the principal money. 4. The court held that the plaintiff's only remedy was not to sue under Section 68 of the Transfer of Property Act, 1882, as Umapati, one of the mortgagors, had nothing to do with the lease and could not be sued for recovery of the mortgage money. 5. The court held that the claim for compensation was governed by Article 115 of the Limitation Act, 1908, as it was a claim for compensation for breach of an implied contract not in writing registered. 6. The court held that the plaintiff was entitled to interest at six percent per annum from the date of the institution of the suit till the date of realization of the money decreed in his favor, as the claim was not based on any contract.
Final Decision: The High Court modified the judgment and decree of the lower appellate court and decreed the plaintiff's suit for compensation for use and occupation of the mortgaged property at the rate of Rs. 475 per annum for the period from 8 annas kist of 1350 Fasli to 8 annas kist of 1353 Fasli, with interest at six percent per annum from the date of the institution of the suit till the date of payment.
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. 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. Before the appellate court it was conceded on behalf of the plaintiff-appellant that no
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