NIBARAN CHANDRA DUTTA Vs. AMAR CHANDRA DAS

JUDGEMENT

(1.) This appeal has arisen out of a suit to eject the defendant under Section 49, Clause (a), Ben. Ten. Act, and for recovery of rent due from him for the years 1332 to 1334. The trial Court gave the plaintiff a decree for rent only; but the lower appellate Court, on appeal by the plaintiff, gave him a decree for ejectment as well. The defendant has appealed. The defendant held as an under-raiyat under a lease for nine years which ran from 1326 to 1334, and which he had obtained on payment of a selami. There was a renewal clause in the lease which ran in these words: "On expiry of the term I shall possess the land after executing a fresh kabuliyat." The suit was instituted on 11 July 1928(Ashar 1335). The trial Court held that the defendant was protected by this clause as to renewal. The Subordinate Judge held thus: This covenant was for the benefit of the tenant, but it gave him no right to the land unless he chose to take advantage of it in the manner prescribed therein by executing a kabuliyat for another term. This the tenant has not done. I do not see how defendant can resist the claim of the plaintiff to khas possession.

(2.) It is conceded on behalf of the respondent that the view which the Subordinate Judge has taken cannot be supported; there was no stipulation in the lease that if the defendant was to exercise his option he would have to exercise it before the expiry of the term; and a sufficient period had not elapsed since the expiry of the term from which a refusal to exercise that option could be inferred. But the decision of the Subordinate Judge sought to be supported on the ground; firstly, that the renewal clause, if it is to be taken to have meant that on the expiry of the original period a fresh lease for the same period and on the same terms as in the original lease was to be given, effected a present demise for a second term and would be a clourable evasion of Section 85, Ben. Ten. Act, and therefore void; and secondly that if on the other hand it be held that the renewal clause left the terms undecided the contract was too uncertain to be specifically enforced and so would not afford a protection to the defendant against eviction. The argument no doubt is very ingenious. But I think the clause is capable of and does, in fact, bear an interpretation that on the expiry of the original term, it was optional with the defendant to ask for a fresh lease, if he desired to hold on, and if he did so apply the plaintiff would be bound to grant it on the same terms and for the same period as the original one. Such a contract would not effect a present demise nor be vague or incapable of specific performance and would protect the defendant. In that view of the matter, the appeal should succeed. The decision of the Subordinate Judge being set aside that of the Munsif should be restored with costs in this and the lower appellate Court. Leave to appeal under Section 15, Letters Patent, is asked for and it is granted. Rankin, C.J.

(3.) In 1325 B.S. the plaintiff accepted from the defendant a kabuliyat which was registered and by which the plaintiff granted to the defendant an under-raiyati right in certain land for a term of nine years upon a certain rental therein specified. The kabuliyat contained the following clause: Be it expressed that the right being kolekarsha the kabuliyat is executed for nine years under the requirements of law from 1326 B.S. till (the end of) 1334 B.S.; on expiry of the term I shall enjoy the land on executing a fresh kabuliat.