SURESH CHANDRA SEN Vs. MAHENDRA NATH MUKHERJEE

JUDGEMENT

(1.) This is a second appeal by the plaintiff in a suit for rent which has been dismissed by both the Courts below. There is a revenue-paying estate which has been described by the learned advocate for the appellant as Mai Touzi No. 37 of the Hooghly Collectorate. The revenue payable at the time of permanent settlement was Rupees 44,868-10-4 which amount was subsequently reduced by land acquisitions to Rupees 44,805-14-9. There is another touzi No. 2152 which has been described as Thanadari Chakran Touzi and the revenue payable in respect thereof is Rupees 369-6.9. Certain persons owned both these touzis and of these Raj Krishna Mukherjee had 12 annas 16 gds. share and Prananath Roy Choudhury had 1 anna 12 gds. share in both the touzis. Prananath gave an ijara lease to Eaj Krishna in res-pect of his 1 anna 12 gds. share by a document dated 22 July, 1865: vide Ex. 2. The present contesting defendants are the successors-in-interest of Eaj Krishna, who, according to the plaintiff's case, had his 12 annas 16 gds. interest in the Mai touzi and 1 anna 12 gds. interest under Prananath. Out of Prananath's share, 12 gds. share was separated and numbered as touzi No. 37/3. This was purchased by the plaintiff at a revenue sale on 8 January 1937. The plaintiff has brought the suit for recovery of rent in his aforesaid share for three kists from Aswin to Chaitra, 1343 B.S. The main contention of the defendants, upon the decision of which the fate of this appeal will turn, is that the lands in suit are covered by both the touzis Nos. 37 and 2152 and that the plaintiff is not entitled to rent without apportionment.

(2.) The first Court held that the Chakran touzi No. 2152 was created after 1865 and that therefore at the time of the lease the lands which were subsequently formed under the Chakran touzi No. 2152 were included within the parent touzi No. 37. In that view the first Court held that the plaintiff was not entitled to succeed with, out apportionment. On appeal the lower Appellate Court held that the touzi No. 2152 was created before 1865 and that in fact it existed in 1837. But he construed the lease in question as including both the touzis which he held was confirmed by the conduct of the parties. Accordingly he also held that the plaintiff was not entitled to succeed without apportionment. Against that decision the plaintiff has come up in second appeal. The finding of the lower Appellate Court (that the Chakran touzi No. 2152 was created before 1865 and was therefore in existence at the time of the execution of the document, Ex. 2, was based to some extent on additional evidence in the way of certain Collectorate papers which were produced in the lower Appellate Court. This finding is no longer in dispute and therefore it must be taken to he conclusive for the purpose of this appeal. The present question as to whether the lands are covered by both the touzis or not turns upon the construction of the document Ex. 2. The material passage in this document has been translated thus: A sum of Rupees 44,868-10-4 in Company's coins is payable to the Colleotorate of District Hooghly on account of Sadar revenue in respect of Mahal lot Hrideyrampur including Chakran appertaining to the zamindari bearing touzi No. 37 of the Hooghly Oolleotorate within pargana Chowmaha and pargana Ghandrakona in the district of Hooghly and within Khariji Chowmaha pargana in the District of Burdwan and Mozafarsahi pargana in the district of Birbhoom.

(3.) It has been pointed out by the learned Advocate for the respondents that the expression Mahal lot Hrideyrampur and the reference to the parganas in the three districts mentioned above would apply to both the touzis. But, on the other hand, only touzi No. 37 is expressly mentioned and the amount of Government revenue which is also expressly mentioned is pay- able only in respect of that touzi. These therefore would appear to be the distinctive or governing expressions in this passage showing that only touzi No. 37 was meant. There has been some argument as to the meaning of the words "including chakran." I think they are consistent with the inter, pretation that chowkidari chakran lands which might be included in touzi No. 37 are meant. Having regard to the exact figure of the Government revenue payable, the touzi number and the description, the entire passage would be inconsistent with the chakran touzi No. 2152 being also intended to be covered by this document. The learned Judge below thought that the omission of touzi No. 2152 and the amount of its revenue was due to the fact that they are "too insignificant to need express mention." This argument does not appeal to me. If it is true that touzi No. 21521 was already created, there is no reason why it should not have been mentioned, since the other touzi number was also given and the revenue of Rupees 369-6-9 was also not insignificant. The learned Judge has also referred to the conduct of the parties as going to show that they treated the suit lands as being comprised within both the touzis. This view is based on certain rent receipts the earliest being of the year 1927, also a valuation roll of 1928, the Eecord of Eights which was finally published in 1934 and cess returns of 1924. These are therefore recent documents. But in any case, if the words of the ijara document are quite clear, it would not be proper to try to come to some other interpretation by reference to the subsequent conduct of the parties. In Baraboni Coal Concern Ltd. V/s. Gokulananda Mohanta Thakur , their Lordships of the Judicial Committee referred to the familiar principle affirmed in North Eastern Railway Co. V/s. hastings (1900) A.C. 2602 that where the words in a deed are clear, the subsequent conduct of parties is an irrelevant consideration. Mr. Chakravarty, who appears for the respondents, has referred to another case-the case in George Richards Laffer V/s. Francis Arnold Gillen (1927) 14 A.I.R. P.C. 275, in which it was held that where the question at issue was entirely one of construction of a particular agreement, it could only be properly answered after a consideration of all the surrounding circumstances, the position of the parties to the agreement, its subject-matter, and the apparent purpose and object thereof, and in particular of the provisions to be construed. But in this case no evidence has been given as to the surrounding circumstances beyond those to which I have referred. In any case, it seems to me that the terms of the document can lead to only one construction and that is that the Chakran touzi No. 2152 was excluded from the defendants lease. That being so, the plaintiff is entitled to succeed.