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1974 Supreme(Pat) 107
PATNA HIGH COURT
S.N.P.Singh and S.K.Jha JJ.
Garaj Narain
Versus
Babulal
Appeal From Appellate Decree No. 83 of 1969 ;
Decided On : MAY 10, 1974
Headnote:Chotanagpur Tenancy Act, Section 46 - Transfer of a raiyati holding by a raiyat in favour of a third party at the inst6nce of the landlord - whether valid, Contract Act, Section 23 - Consideration for the lease being against law - effect of.
Where the raiyat executed a registered deed of surender in favour of the landlord and the landlord executed a deed of lease in favour of a third person,
Held, that it was merely a circuitous way of getting the transfer from the original raiyat indirectly through surrender to the landlord and then taking the so called deed of lease from the landlord, is hit by Section 46 of the Act. (Para 6)
Held further, that consideration or the object of the agreement is illegal if it is forbidden by law or is of such a nature that if permitted it would defeat the provisions of any law and every agreement of which the object or consideration if unlawful is void. That being so the deed of surrender and lease were void and no title can be derived on that. (Para 6)
Transfer of Property Act, Section 107 Lease not signed by both the lessor and the lesee, whether valid.
Held, that even if the lease be registered it would be invalid and can not confer any title since it was imperative for both the parties to have signed it in order to create a valid lease. (Para 7)
Transfer of Property Act, 1882, Section 53A - Plaintiff claiming title on the basis if an invalid lease - whether can take advantage of Section 53A on the basis of posession.
Where the plaintiff claimed title on the basis of an invalid lease and wanted to take aid of section 53A,
Held, that the right conferred by Section 53A is a right available only to the defendant to protect his possession. The section is so framed as to impose a statutory bar on the transferor, but it confers no active title on the transferee. This section is only available as a defence to lessee but does not give any right to claim possession or to claim any other right on the basis of an invalid lease. (Para 8)
Possessory title- Plaintiff and defendant failing to establish their title- defendant being in possession- plaintiff whether can maintain his action.
Where the plaintiff claimed title and wanted to recover possession on the basis of a lease which was held to be invalid and the defendant failed to establish his own but was in possession,
Held, that it is well settled that in a suit for possession based on title, the plaintiff must stand or fall on the strength of his own title. (Para 8)
Code of Civil Procedure (Act V. of 1908), Section 11 - Order 6 R.2 - Evidence Act (1 of 1872), Section 115 - Consent decree passed accepting the position if landlord and tenant-denial of relationship of landlord and tenant in subsequent suit whether barred by principles of rejudicata or estoppel - Defendant not pleading specific facts in support if Plea of res judicata-Parties contesting the suit and appeal on the issue if res judicata-question whether can be gone into as a pure question of law.
Held, that a consent decree is not a decision of the Court on an application of its mind and section 11 is not attracted.
Held further, that all the necessary facts have been set up and canvassed before both the courts below by both the parties for the purpose of determining the question of res-judicata. But if on such facts as they are discussed in the judgments of both the courts below, especially, the lower appellate court, it can be inferred in law, that, though the plea of res-judicata was not entertainable in view of the consent decree, yet, the plea of estoppel would arise in this case. And. technical objection could be raised, as it is a pure question of law and does not cause any prejudice. (Para 9)
S.N.P.SINGH, J.
1. The defendant is the appellant before this Court against a judgment of reversal. The trial court had dismissed the respondents suit which has been decreed in appeal by the Lower Appellate Court. The respondent instituted the present title suit for declaration of his title and recovery of possession with regard to survey Plot No. 965, Khata No. 211, corresponding to the revisional survey Plot. No. 344, which is a part of Ranchi town within the municipal area bearing originally municipal holding No. 970, which was converted into holding No. 1130 at the time when the suit was filed.
2. According to the plaintiffs case, the land in question originally was the raiyati holding of one Silas Oraon, and one Gulam Rasul was the landlord of the tauzi in question. It may be stated here that tenancy in such cases was governed by the provisions of the Chota Nagpur Tenancy Act, 1908 . It is alleged that by a registered deed dated 3rd December, 1940, Silas Oraon aforesaid surrendered the holding to Gulam Rasool. This registered surrender deed is Exhibit 4 on the record. Two days later, it is asserted, on 5th December, 1940, Gulam Rasul executed a registred patta (Ext. 5) making a permanent Chhaparbandi lease in favour of the plaintiff for a consideration of Rs. 400/-. The defendant was alleged to be a monthly tenant inducted on the premises in question by the plaintiff at a monthly rent of Rs. 10/-. The plaintiff instituted on an earlier occasion Title Suit No. 80 of 1963 in the court of Munsif, Ranchi, for eviction of the present appellant from this very plot of land. In that suit the appellant denied the relationship of landlord and tenant between the parties and claimed to be in possession of the property in his own right as an owner. Certain title was set up and pleaded in defence in that suit. The learned Munsif who heard the suit held that the question of title was alien to that suit since it was a suit for eviction under Sec. 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. It was further found that the plaintiff had not been able to establish the relationship of landlord and tenant between the parties, and the suit was accordingly dismissed by a judgment and decree dated 13th January, 1964. Against that judgment and decree the plaintiff preferred an appeal, being Title Appeal No. 14 of 1964 before the Judicial Commissioner, Ranchi, which was ultimately heard by the 4th Additional Judicial Commissioner. At the final hearing of that appeal a consent decree was passed in these terms on 12th January 1965 :
"Both the counsel are agreed that the question of title and possession of the plaintiff to the house be set aside and be left open for future adujdication and the appeal be dismissed and the plaintiff be at liberty to file a fresh suit. The question of title and possession of the plaintiff over the suit house is left open and the appeal is dismissed on the consent of the parties and the costs of the appeal would be borne by the parties."
Thereafter, the plaintiff has instituted the present suit, alleging that the defendant was his tenant who had been requested to vacate the premises and he had also sent a notice dated 8th March, 1965, under Sec.106 of the Transfer of Property Act by registered post, terminating the tenancy immediately after the expiry of 31st March, 1965. But, it is alleged, the defendant had refused to accepted the said notice. In paragraph 9 of the plaint it was asserted that the plaintiff was entitled to get a declaration of title, and recovery of possession after evicting the defendant. The cause of action for the suit is said to have arisen on 8th March, 1965, the date on which the notice was alleged to have been sent and thereafter on 1st April, 1965, when the defendant failed to vacate the premises.
3. The defence of the appellant was inter alia, that the suit was barred by limitation; the plaintiff had no subsisting title or possession over the suit property; the suit
