DARAB KUAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present appellant is the widow of the original plaintiff. She was substituted on the death of her husband while the appeal was pending in this Court. Her husband brought a suit for recovery of Rs. 48,507/- as damages against the State of Bihar and the Union of India representing the North Eastern Railway. He asked for a permanent injunction against those defendants and the members of the District Board of Saran, who were impleaded as defendant No. 3 through the Chairman of that Board, restraining them from claiming any amount from the plaintiff on account of rent due from him. His allegations were that the right to collect toll from the people who would pass on the footpath on the railway bridge over the river Gandak known as Sonepur-Hajipur-Gandak bridge and from the people who would cross the two public ferries on the northern and southern side of the railway bridge known by the names Pathra-Sewaich and Sabbalpur Konhara ferries, was leased to the plaintiff for a period of three years from the 1st of April 1949 to the 31st of March, 1952 on an annual rental of Rs. 33,700. A public auction for that purpose was held by the District Magistrate of Muzaffarpur on the 17th of February 1949, for which, a notice dated the 4th of December 1948 inviting bidders for settlement of the two ferries and the foot-path had been given before. The settlement with the plaintiff was approved by the Divisional Commissioner and that was communicated to the plaintiff by a letter dated the 9th of March 1949. Apart from the security deposited before the bid at the auction, he deposited in the treasury Rs. 8,435 as rent for the first quarter of the first year of the lease on the 23rd of April 1949. He also filed the requisite stamp before the District Magistrate on the 31st March 1949, for the purpose of executing a kabuliat in respect of the said lease; but that could not be executed as a condition for repair of the bridge which was not in the auction notice, was sought to be imposed on the lessee, to which he was not agreeable. After the plaintiff had made elaborate arrangements for realisation of tolls by engaging employees, boatmen and by arranging sufficient number of boats, he was informed by the District Magistrate that the foot-path on the railway bridge would remain free to the public and the lessee would not have the right to collect any toll from any of them with effect from the 3rd November 1949. According to the plaintiff, the footpath was the main and attractive source of income in the lease, and, but for that, he would not have agreed to take the lease of the two ferries. As he found that after the release of the foot-path, he was unable to meet his cost of establishment, he surrendered the lease of the two ferries also, on the 31st of August 1950, which was accepted by the District Magistrate; but, in spite of that, the defendants demanded from the lessee rent on account of the lease. He claimed in the suit that the anticipated profit from the lease of the foot-path on the railway bridge was not less than Rs. 15,000/- a year, and, as such, he asked for a decree of Rs. 45,000/-on that score, on the ground that the lease was terminated to the detriment of the lessee, without any fault on his part. He also claimed Rs. 2507-6-0, as damages for loss sustained on account of the elaborate arrangements made by him for collection of tolls on the railway bridge.

(2.) The suit was resisted by the three defendants, who filed separate written statements. It was admitted by the State of Bihar and the District Board of Saran that the two public ferries and the foot-path on the railway bridge were jointly settled with the plaintiff, who was the highest bidder, for three years, for Rs. 33,700/- annually; but, they contended that as no kabuliyat was executed by the lessee, he was not legally entitled to sue on the lease. They, however, justified their demand for rent from the plaintiff under the lease and admitted to have written a letter for the purpose on the 20th of March 1952. The first defendant (State of Bihar) stated in their written statement that the plaintiff was allowed a remission of Rs. 15,617/- in the rent, after enquiries about the loss sustained by him, on account of the release of the foot-path on the bridge. But he did not take advantage of that leniency or paid the balance. The Union of India, in their written statement, repudiated the lease, as, the plaintiff failed to execute the necessary kabuliat and to deposit one year's rent forthwith, on settlement.

(3.) On these pleadings, the trial Court framed eight issues, of which, the first was about the maintainability of the suit. The objection was that, as the contract of lease was not expressed or executed, as provided for in Section 175 of the Government of India Act, 1935, the plaintiff could not lay any suit on the basis of the same. Though the trial Court held in favour of the plaintiff about the settlement of the ferries and the footpath and the release of the latter during the period of the lease, it dismissed the plaintiff's suit as not maintainable. The present appeal is directed against that.