Chinnathayi v. Kulasekara

The defendant executed a registered bbuliyat to the Receiver who was n1anaging an estate pending a suit, purporting to a plot of land on lease for a period of ten years at a rental of Rs. 46 per annum and paid the first year'.i rent of Rs. 46 on 8th March, 1925, and the next year's rent on the 16th March, 1926. No further rent was paid by the defendant to the Receiver treating or to the defendant as a monthly tenai; it served notice to quit on him the 7th August, 1942, and instituted a suit for ajectment in July, 1943. The kabuliyat was the. the payment and acceptance of annual defendant contended 'rent in 1925 and 1926 did not create a monthly tenancy but tenancies for one year each for relation of landlord and tenant came to an end on the exipration of th'C second annual lease, and, as there was no holding over, the suit was Held (i) t.ime-barred : that from the facts a tenancy could be presumed to have come into existence from 1924 ; (ii) as the purpose of tenancy was for building structures on the land, under sec. 106 ()f the Transfer of Property Act the tenancy must be presumed to be one from month to month in the absence of a contract tenancy was for one year the contrary ; (iii) a contract that the certain could not be the fact that an a'nnual rent was paid in 1925 and 1926, inasmuch as the parties kabuliyat, though the facts of the case it was quite proper to hold that the tenancy was one from month to month since its inception in 1924 and the suit was not time~barred. intended to create a lease for one year; {iv) on in the present case from two successive years, law, showed inoperative inferred Debendra Nath v. Shyama Prasanna (11 C.W.N. 1124) and Sheikh Akloo v. Emaman (I.L.R. 44 Cal. 403) approved. Aziz Ahmad v. Alauddin Ahmad (A.LR. 1933 Pat. 485), Md. Moosa v. faganand (20 LC. 715) and Matilal v. Darieeling Muni· cipality (17 C.L.J. 167) rderred to. CIVIL APPELLATE JUR1smcTJoN : Civil Appeal No. 114 of 1950. Appeal from a judgment and decree of the High Court of Patna (Shearer and Reuben JJ.) dated 5th November, 1948, in Appeal No. 2064 of 1946, _. . ~ . - "' . • • I • i - S.C.R. SUPREME COURT REPORTS 271 which arose out of a decree of the District Purulia in Title Appeal No. 116 of 1945. are stated fully in the judgment. Judge of The facts M. C. Setalvad, Attorney-General for India, (Nandlal Untwalia, with him) for the appellant B. C. De (lyotirmoy Chose, with him) for the res-, 1951 Ram Kum,,, Dai· v. /agdish Chandra Deo Dhabal Deb and Ant~lher. pondent.

#1951. November 26. The Judgment of the Court was delivered by the Court of is on behalf of MuKHERJEA J.-This appeal defendant and it arises out of a suin commenced by the Subor- the plaintiff respondent, in dinate Judge at Chaibassa, for recovery of possession of the land described in schedule to the plaint, on the allegation that the defendant was a monthly tenant in respect of tenancy was the same, and determined by a notice to quit. The suit was decreed the trial court and the decision was affirmed, on appeal, by the District Judge, Purulia, and on Second Appeal, by a Division Bench of the High Court of Patna. The defendant has now come up to this court on the strength of a certificate granted under section 110, Civil Procedure Code. ' by Mr. Setalvad, appearing on behalf of the defendant- appellant, stated to us at the outset that he would not dispute the validity or sufficiency of the notice quit served upon his client, if on the facts of this case he is held to be a monthly tenant under the plaintiff in respect of the premises in suit. His contention, in substance, is that the defendant was at no point of time a monthly tenant under the plaintiff or his pre- cleeessor. There might have been, according to learned Counsel, two tenancies for one year each for two successive periods, but on the expiry of the second yearly lease, which happened on 7th December. 1926, the defendant ceased to be a tenant and no fresh tenancy was created by holding over as contemplated· by section 116 of the Transfer of Property Act. As there was no holding over, there could not be any ques- tion of a monthly tenancy being brought into existence 3-4 S. C. lndia/71 1951 Ram Kumar Das . 'v. /aztlish Chandra Dea Dhabal Deb 1mtl Another. Mulcheriea /. 272 SUPREME COURT REPORTS [1952] under the provision of section 116 of the Transfer of Property Act, and the present suit of the plaintiff hav- ing been admittedly brought more than 12 years after the determination of the second yearly lease, is barred by limitation under Article 139 of the Indian Limita- tion Act. The whole controversy in this appeal thus centres round the point as to whether the defendant was in fact a monthly tenant under the plaintiff at to quit was the <late when the notice served respective contentions upon him. To appreciate that have been put forward upon this point by learned Counsel on both sides, it will be necessary to narrate briefly the material facts in their chronological order. It is not disputed the proprietor of The property in suit is a plot of land, measuring 4 bighas 12 cuttas, and is comprised in old Survey plot No. 573 of village Jugselai in the district of Singh- bhum. 'fhe entire village forms part of the Dhalbhum estate, of which the plaintiff is admittedly the present proprietor. One Charan Bhumiji was the "Pradhan" of village Jugselai from some time before 1913 and on 24th July, '1913, the father of the defendant, by a registered Patta, tqok a lease of about 31 bighas of Jana appertaining to Survey plot No. 573 from this Pradhan for purposes of cultivation. the property in suit is covered by this Patta. At that the Dhalbhum estate was Raja Satrughna and he died in 1916, leaving behind him a will by which the entire estate was bequeathed to the present plaintiff. The plaintiff's claim under the will was challenged by one Partap Chandra Deo Dhabal who succeeded in getting his name recorded as proprietor of the zemindari in the Singhbhum Collec- torate. Thereupon the plainitiff instituted a suit (being Title Suit No. 67 of 1921) in the Court of the Suborm.. nate Judge at Mindapore for establishment of his title to the zemindari and the suit was decreed by the trial Judge. Against this decision, the defendant Pratap .Chandra Deo Dhabal took an appeal to the High Court of Calcutta and during the pendency of this appeal, the High Court appointed a Receiver who was put in . ' \ - • 4. .... - 1951 Ram Kumar Das v. f agdish Chandr11 Deo Dhabal De' and Anothi!r. Mukherfea f. S.C.R. SUPREME COURT REPORTS 273 a it was the record rental amounting the entire estate.. On 8th December, possession of registered Kabuliyat 1924, the defendant executed in favour of the Receiver, by which he purported to take settlement of the land in suit for a period of 10 years at a rental of Rs. 46 per annum and a selami of Rs. 250. There was a covenant in the lease, which looks like one for perpetual renewal, and the effect that on the expiry of the term, if the lessor did not require the land for his own purposes decided to re-settle it, the lessee would be entitled to fresh settlement on enhanced rent and on such then agreed upon between the parties. as might be It appears from that the selatni money, amounting to Rs. 250, was paid by the defendant to the Receiver several months before the Kabuliyat was executed, and to Rs. 46 was paid for the first time on 8th of March, 1925. The in the succeeding next payment of rent was made year, on 16th of March, 1926. Admittedly, no further payment of rent was made by the lessee either to the Receiver or to the proprietor since period. The High Court dis.missed the appeal pteferted time in 1924 by Pratap Chandra Deo Dhabal some and this order of dismissal was affirmed by the Judi- cial Committee in May 1927. The Receiver was then discharged and the plaintiff got possession of the entire estate in July 1927. On April 15, 1937, the plaintiff brought a suit for ejectment (being Title Suit No. 2 of 1937) against the defendant in respect of this property in the Court of the Subordinate Judge at Chaibassa. The claim was based substantially u,pon the terms of the Kabuliyat executed by the defendant on 24th of December, 1924, and the suit was, cjectment of a lessee oil the expiration of the period provided for in the lease. the renewal clause irt the Kabuliyat that was challenged as invalid and inoperative, not only because it was vague and indefinite but also on the grouhd the Receiver acted beyond his authority in entering into a stipuia- tion of this character. It was only then, up fact, one - ... Jo ' ' ' 1951 Ram Kumar Das v. fagdish Chandra Deo Dhabal Deb .and Another. 274 SUPREME COURT REPORTS [1952] The defendant in his written statement resisted the plaintiff's claim for possession primarily on the ground that he had acquired permanent rights in under the Prodhan' s Patta of continuous occupation of it since then for more than 12 years. The to ignore altogether. Kabuliyat of 1924, he attempted It was said that it was executed only to avoid trouble and harassment at the hands of the Receiver and that, ·being inoperative as a lease it could not, in any view, affect ·the prior rights which he acquired under Patta of 1913. 1913 settle inasmuch lands of in law to determine The trial judge decreed the suit. On appeal, judgment was reversed by the District Judge and the plaintiff's suit was dismissed simply on the ground that the notice to quit that was served on the defend- ant was ineffectual the tenancy. The District Judge found, first of all, that the Prodhan's Patta was void and inoperative in law· and could not create any rights in the defendant, Prodhan had no authority character. The Kabuliyat of 1924 was also held to be ineffectual as not amounting to a lease as defined by It was held, however, the Transfer of Property Act. by the District Judge that apart from the Kabuliyat, a tenancy was created by payment and acceptance af rent in the years 1925 and 1926 and after 1926 defendant occupied .the position of a monthly tenant . by holding over under section 116 of the Transfer of Property Act. Such tenancy could be determined by fifteen days' notice, expiring with the month of tenan- .cy, but as the notice, which was served by the plaintiff upon the defendant, did not fulfil this plaintiff's· suit was bound to fail. The District Judge, though he dismissed the suit, gave the plaintiff a de- . claration to the effect that the defendant was liable to eviction on service of fifteen days' notice, expiring with the end of the Bengali month of the tenancy. Against this decision, the plaintiff took an appeal to the High Court of Patna, and the appeal came up for hearing be- fore Harries C. J. and Faz! Ali J. The learned Judges affirmed the finding of· the lower appellate court that requirement, ·.~ • - > .. \ ... -. 1951 R.am Kumar Das v. Jagdish Chandrti Deo Dhabal Def, and Another. Mukherjea. f. S.C.R. SUPREME COURT REPORTS 275 The learned that as insufficient Judges further held the Patta of 1913 as well the Prodhan's Patta did not create any rights m defendant and that the Kabuliyat of 1924 was ineffectual as a lease to give the defendant any tenancy right. defendant did not acquire any permanent right in the reason land by prescription or otherwise and that by the years of the payment of rent to the Receiver in 1925 and 1926 he became a tenant from month In these circumstances the High Court con- month. curred with the District Judge m holding that the for the purpose of notice to quit was It seems that the defendant determining the tenancy. made a strenuous endeavour before the High Court to as the establish Kabuliyat of 1924 were both invalid and inoperative, he was never a tenant in respect of the land in suit and no tenancy could be created by the two payments of rent, inasmuch as receive them. plaintiff was in possession of the land a trespasser all along and thus acquired a good tide by adverse pos- session. The High Court, though it held definitely that the defendant was a tenant from month to month, nevertheless .kept open the question as to whether the tantamount payment of rent to the Receiver was It was held payment to the plaintiff. notice to quit was <;lefective, that was sufficient dismissal of the suit, and the declaration made in decree of the lower appellate court that the defendant fifteen days' was liable to be evicted on service of notice, expiring with the Bengali month of the tenancy, was directed to be deleted. High Court was pronounced on the 5th of May, 1942. the Receiver had no authority It was contended, therefore, judgment of This Soon after this on 18th July, 1942, the plaintiff served a notice to quit on the defendant, asking nim to vacate ·the land on the 7th of August following, and the defendant refused to give up possession, present suit was brought on 22nd July, 1943. The plaint in the present suit proceeds entirely on High Court in the previous litigation. The recorded by simple one; the findings is a very - .... ' . >. -, 276 SUPREME COURT REPORTS (1952] 1951 Ram Kumar Das v. Tagdish Chandra Deo Dhabal Deb and Another. possession is not based on the terms of the Kabuliyat of 1924. The plaintiff avers that by reason of the pay- ment of rent on 8th March, 1925, and 16th March, 1926, the defendant became a tenant from month month under him and the tenancy was determined by a proper notice to quit. Mukherjea. ]. The defendant in his written statement raised several pleas in answer to the plaintiff's claim. He reiterated his rights under the Pattti of 1913 and urged that by reason of his holding possession of land on asser- tion of a permanent tenancy right for a long period of time, he acquired a valid title to the property. As regards the Kabuliyat of 1924, it is said in one part of the written statement that the defendant executed this facts without document under misapprehension of lmowini•. tl1e contents thereof. But at another place is stated that plaintiff and he was not entitled to institute a suit in contravention of its terms, wiiliout in any event refund- ing the The defendant admitted, what he denied in the earlier suit, that the payments· made to the Receiver amounted to payments plaintiff himself, although this question was left open by the High Court on the previous occasion. The other · pleas raised in the written statement are not material, except that a specific point was taken, challenging the sufficiency of the notice to quit that was served upon the defendant. the Kabuliyat was binding on selami money. On iliese pleadings a number of issues were framed. The trial judge held on a consideration of the materials placed before him that the Prodhan' s Patta was a void. and· inoperati:ve document and conferred no rights on the defendant. He negatived defendant attempted to ma1* in course of hearing, that the Kabuliyat executed by him was bY) It was held by tile Subordinate threat and coercion. J;udge in accordance with the decisions of the Patna High Court on tile point that the Kabuliyat could nm; operate as ·a, lease under the Transfer of Property Act,. and consequently the defiendant did not acquire dghts of a lessee under the same. He held, however,, case, which obtained - .. - ' 1951 Ram Kumar DllS · 1'. fagdish. Ch111Zdr11 Deo Dhabal DeJ and AfWtlter. took an appeal to the court Mu-'!(.herjn. J. S.C.R. SUPREME COURT REPORTS 277 the appeal and it was section rent a new that by payment and acceptance of tenancy was created de hors the Kabuliyat, and as the a new tenancy was for building purposes, tenancy from month 106, to month under terminable by fifteen days' Transfer of Property Act, notke. As the notice was proper and sufficient, trial judge decreed the plaintiff's suit. Against this judgment, the defendant of the District Judge, Purulia, and the District Judge dismissed affirmed the judgment of It appears that two points were raised the trial court. by- the defendant before the District Judge in support of his appeal : one was that the Kabuliyat of 1924 was the defendant effective as a lease and consequently could not be ejected in contravention of thereof. At the same time it was contended that there was no tenancy at all held by the defendant under the as the payments made plaintiff, inasmuch Ree::eiver could not be regarded as payments plaintiff. The first point, the District Judge pointed out, was contrary to Patna High Court, while the second was contradictory to· the defendant's own admission in the written state- ment. the express decisions of JJ. The learned Judges agreed The defendant then came up in Second Appeal before the High Court of Patna and the appeal was heard by a Division Bench, consisting of Shearer and Reuben dismissing the appeal and affirming the decree made by ~he courts below, but the grounds upon which they based their decision are regards implication of· the nature of the tenancy created by in consequence of the Receiver having accepted payment ot it was held by Reuben accepted rent in 1925, it should be presumed the parties intended to creat a tenancy for one vear and when he accepted rent again in 1926, such acc~ptance amounted to his a~senting to the defendant's holding over; and in view of the purpose for which the tenancy was created, tenant from the defendant from that time became a that when the defendant, identical. As the Receiver J. "' . ' . >. --; \ - I, 278 SUPREME COURT REPORTS [1952] ' month to month under the provision of section 116, 1961 Transfer of Property Act. · Shearer, J ., felt diffi- - 0 "' culty in accepting this view though in his opinion Ram Ku=• Jagdish vClvmdm if a periodic tenancy was created at all, it was from o.,, ohaw o,bmonth to monthand not from year to year. There are and Anoth<r. Observations, however, in the latter part of the judg- ment of Shearer, j,, which would go to show that in Mukherj .. 1• his opinion the creation of two leases, each for one year, could be fairly gathered from the admitted facts of the case. The learned Judge was not sure, however, as to whether the defendant ever became a tenant of the plaintiff. He discussed the nature of the renewal clause contained in the Kabuliyat and held it to be void for uncertainty. He also negatived the defendant's plea on the strength of adverse possession. His conclusion was that whatever view might be taken regarding these points, the defendant had no valid defence to the plaintiff's claim for eviction and consequently the decision of the courts below was right. It is the pro- priety of this decision that has been challenged before us in this appeal. ' r Mr. Setalvad, in support of his client's case, has not called in aid the Prodhan's Patta of 1913; nor has he placed any reliance upon the Kabuliyat of 1924 and the covenant for renewal contained therein .. He has not disputed before us that the payments made to the Receiver were in reality payments to the plaintiffs, and has conceded that a tenancy could be created by implication by reason of his client having paid and the Receiver having accepted rents in respect of the suit premises. His contention, as indicated already, is that by reason of .the payment and acceptance of rent, tenancies for one year each, created for two successive years; but the relationship of landlord and tenant between the parties came to an end on the expiration of the second annual lease. As there was no holding ·over by the defendant since then as contemplated by section . 116, Transfer of Property Act, there was rio subsisting tenancy at any time after December, 1926, and the plaintiff's suit instituted in the year 1943 was obvious-_ ly time- barred. there· were _two 1951 Ram Kumar Das v. fagdish Chandra Deo Dhabal Deb and Another. Mu"k_herjea /. S.C.R. SUPREME COURT REPORTS 279 Mr. De, appearing for the plaintiff-respondent, has, on the other hand, contended the tenancy that was created by payment and acceptance of rent in the year 1925 was from the beginning a tenancy from month to month under the provision of section 106. Transfer of Property Act. Alternatively, he has argued that if a tenancy for one year only was created m the year 1925, then after the expiration of that one year's lease the defendant held over and the Receiver's assent his continuing in posse&sion is evidenced by acceptance of rent from him in the year 1926. The tenancy created would be a tenancy from month to month under section 116, Transfer of Property Act. Lastly, it is argued that even if two successive tenancies were created facts admitted and proved would go to show that the tenant held over and consequently a after the second tenancy from month to month came into existence in accordance with the provision of section 116, Transfer of Property Act, even though no rent was demanded by the landlord after 1926. The controversy between the parties so far as concerned, therefore, this appeal narrows down to the following three points :- for one year each, annual 1s ( 1) What was the nature of the tenancy created by acceptance of rent by the Receiver from the defend- ant on the 8th of March, 1925 ? If it wa.~ a tenancy from month to month, it is not disputed on behalf of the defendant tliat on question of holding over would at all arise and the plaintiff would succeed. entitled (2) If in 1925 a tenancy was created for one year, can the landlord's assent to the defendant's continuing in possession be inferred from the fact that rent was accepted from the defendant in March, 1926 ? (3) If another the payment in March, 1926, brought tenancy a subsequent year, was tenancy created after the second year, although there was no demand or acceptance of rent by the landlord since then ? acceptance of existence - - } . >. • --..... ----------- ........ ' \ 280 SUPREME COURT REPO~TS [ 1952) v. 1951 - . So far as the first point- is concerned, the courts below have proceeded on the view- that a registered Ram Ku=r Da• instrument signed by the landlord was necessary to create a valid lease for ten years .. _That view was not Jagdi•hhac;:;;":i";. questioned before us and we express no opinion on this ~JAnoeher.' point. Proceeding, therefore, on the assumption that even though the parties might have intended to create JtukherieaJ._ a lease for IO years, no operative lease came into existence, the only. facts admitted are that the defend. ant remained in possession of the land belonging to the plaintiff with the permission of the Receiver who represented the plaintiff's estate, and paid rent to the latter. From these facts a tenancy could be fairly presumed and the point for determination is, what was the duration of the tenancy that was created in the present case? Section 106 of the Transfer of Property Act lays down: I, ·" In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, _on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other pur- pose shall be deemed to be a lease from month to. month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of tenancy." · The section lays down a rule of construction which is to be applied when there is no period agreed upon _between the parties. In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created. The rule of con- struction embodied in this section applies not only to~ express leases of uncertain duration but also to leases implied by law which may be inferred from possession It and acceptance of rent and other circumstances. is conceded that in the case before us the tenancy was not for manufacturing or agricultural parposes. The object was to enable the lessee to build structures upon tqe lanq. In these circumstances, it could ]?~ -- .r _r 1951 Ram KumtW D111 v. /agdish Chantbrz D~ Dhahal DH> aml Anotlit:f'. S.C.R. SUPREME COURT REPORTS 281 regarded as a tenancy from month to month, unless there was a contract to the contrary. The question now is, whether there was a contract to the contrary in the present case ? Mr. Setalvad relies very strongly upon the fact that the rent paid here was an annual rent and he argues that from this fact it can fairly be inferred that the agreement between the parties was certainly not to create a monthly tenancy. It is not disputed that the contract to the contrary, as contemplated by section 106 of the Transfer of Property Act, need not oe an express contract ; it may be implied, but it cer- If it is no contract tainly should be a valid contract. in law, the section will be operative and regulate the duration of the lease. It has no doubt been recognised in several cases that the mode in which a rent is ex- pressed to be payable affords a presumption tenancy is of a character corresponding thereto. Con- the rent reserved is an annual rent, sequently, when the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption. But the difficulty in applying this to the present case arises from the fact that a tenancy rent can be from year to year or reserving a yearly made only by registered instrument, as laid down section 107 of the Transfer of Property Act(1). The Kabuliyat in the case before us is undoubtedly a regis- tered instrument, but ex concessis it is not an opera- tive document at all and cannot consequently fulfil the requirements of section 107 of the Transfer of Pro. perty Act. This position in fact is not seriously controverted lJy Mr. Setalvad ; but what be argues is that a lease for on.e year certain might fairly be inferred from payment of annual rent, and a stipulation would not come within the mischief of section 107 of the Transfer of Property Act. His contention is that the payment of an annual rent, as was made in the a monthly present case, is totally inconsistent with lease. We are not unmindful of the ' . >. - - -..... (1) Vi de Debendra Nath v. SyamaPrasanna, l l C.W.N. 1124, 1'126. 1951 Ram Kumar Das v. fagdfrh Chandra Deo Dhabal Deb •nii Another. 282 SUPREME COURT REPORTS [1952] . ). certain reported cases, such inference has been drawn. One such case has been referred to by Mr. Justice. in ills judgment('), where reliance was placed Reuben upon an earlier decision of the Calcutta High Court(2 ). A similar view seems to have been taken also in Mati lal v. Darjeeling Municipality( 3 · But one serious objection to th.is view seems to be that this would amount to making a new contract for the parties. The parties here certainly did not intend to create a lease for one year. The lease was intended. to be for a period exceeding one year, but as the inten- tion was not expressed in the proper legal. could not be given effect to. to say that in the absence of a valid agreement, the rights of the parties would be regulated by law the same manner as if no agreement existed at all ; it is quite another thing to substitute a new agreement parties which is palpably contradicted by the admitted facts of the case. It is one thing form, It would be pertinent to point out in this connec- tion that in the Second Appeal preferred by the plaintiff against the dismissal of his earlier suit by the appellate court, the High Court definitely held the defendant's tenancy was one from month to month under section 106, T~ansfer of Property Act, and only question left open was whether payment to Receiver amounted to payment to the plaintiff himself. In this suit the defendant in his written statement that payment to the Receiver had the same effect as payment to the plaintiff, and the trial judge took the same view as was taken by the High Court on the previous occasion, that by to and· the defendant acceptance of rent by became a monthly tenant under section 106, Transfer of Property Act. the District Judge, which was the the only ground upon which the defendant sought to challenge the Receiver this finding of the trial judge was was an unauthorised person because of the decision of .before court of facts, In ms appeal the Receiver, admitted payment (!) Aziz Ahmadv. A/auddin Ahmad, A.I.R.1933 Pat. 485. (2) Md. Moosav. Jaganurtd20I.e.1.15, (3) 17 C.L.J.167. - - - . l9Sl Ram Kumar Das v. fagdish Chandra Deo Dhabal Deb and Another. Mufcherjer.i J. ; . I~ t . S.C.R. SUPREME COURT REPORTS 283 rent by the Judicial Committee which . set aside his appoint- ment and consequently acceptance of person could not create a monthly tenancy. This shows that it was not the case of the defendant at any stage of this suit that because one year's rent was paid, a tenancy for one year was brought into existence. We think, therefore, that on th~ facts of this case it would be quite proper to hold that the tenancy of the defend- ant was one from month to month since its inception in 1924. This view finds support from a number of reported cases(1), and in all these cases the rent pay- able was a yearly rental. On finding no other question would arise and as the validity of the notice has not been questioned before us, the plaintiff would be entitled to a decree in his favour. The appeal thus fails and is dismissed with costs. Appeal dismissed. Agent for the appellant : R. C. Prasad. Agent for the respondents : S. P. Varma. (1) Vide Dehendra Nath v. Syama Prasanna, 11 C.W.N. 1124; Sheikli · Akloo v. Emaman, I.L.R. 44 Cal. 403.