Validity of surrender of lease by one lessee.

This Second Appeal arises out of a suit, Original Suit No. 24 of 1958, Sub-Court, Tiruchirapalli, filed by the appellants for recovery of possession of the suit properties and for mesne profits. The first plaintiff is a family trust, represented by the managing trustee, and the second plaintiff is a lessee from the first plaintiff under a lease deed, Exhibit A-1, dated 30th June, 1957. Their case is that the first defendant was lessee of the suit property for the past several years, that Exhibit A-2, dated 30th November, 1956, was last of the lease deeds, that the first defendant surrendered possession of the properties to the first plaintiff, after making an endorsement to the effect in the lease deed. Their further case is that even though the second defendant also joined the first defendant in the execution, of the lease deed, Exhibit A-2, he was merely a surety and that throughout, the first defendant alone actually cultivated the land and he alone was the sole lessee.

The defendants contested the suit on the ground inter alia that both of them were lessees, that the surrender by the first defendant was not true, that he made the endorsement on the misrepresentation by the first plaintiff that it was merely an endorsement of the payment of the entire arrears of rent upto date and that, in any event, as the alleged surrender was only by the first defendant it was inoperative and that, throughout, both have been in possession of the property.

The learned Subordinate Judge who tried the suit, decreed the same holding that the first defendant alone was the lessee, and that he actually surrendered the property on 27th June, 1957 land also made a written endorsement to that effect on the lease deed. On appeal by the defendants, the learned District Judge allowed the appeal and dismissed the suit holding that defendants 1 and 2 were both joint lessees cultivating the land and that under section 92 of the Evidence Act, it was not open to the plaintiffs to set up an oral agreement contrary to the terms of the lease that the second defendant was merely a surety and not a lessee at all. The learned District Judge also held that there was no surrender of the lands by the first defendant but that the first defendant himself continued in possession of the property. The plaintiffs have preferred the present Second Appeal.

Learned Counsel for the appellants contends that the first defendant alone is the lessee actually cultivating the land, second defendant being merely a surety,and that section 92 of the Evidence Act is not a bar to such a plea. He also contends that the first defendant actually surrendered the lands and that a surrender by one of two lessees is sufficient and operative in law to bring about a termination of the lease.

The learned District Judge in paragraph seven of his judgment has given his reasons for his finding that both the defendants were actually lessees. I am not satisfied that the learned District Judge’s discussion and appreciation of the evidence and the probabilities of the case is vitiated by any erroneous approach as to justify my interference with that finding in Second Appeal. It is true that the learned Subordinate Judge came to a contrary finding but being a question of fact, the finding of the learned District Judge is binding on me, as there is no error of law committed by the learned District Judge.

Even otherwise, I am of the opinion that section 92 of the Evidence Act is clearly a bar to the plea that the second defendant is merely a surety. In Mulchand v. Madho Ram1, the scope of the words in section 92 of the Evidence Act

"No evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives-in-interest."

came up for consideration. In that case, one Murlidhar executed a sale deed of certain houses and other premises in favour of two brothers, Ganga Prasad and Mulchand. Several years later Ganga Prasad filed a suit against his