- (1.) The Appellant's father Sambhu Charan Patra held the suit land under the Plaintiff-Respondent as an under-raiyat under a registered lease for nine years (vide, kabuliyat, dated Asdr 2, 1345 B.S., corresponding to June 17, 1938) expiring with the end of Jaistha, 1354 B.S. On the expiry of the said lease, he held over, with his landlord's consent and, thereafter, on Pons 29, 1354 B.S., he executed an istafanaha (Ex. 2) in favour of the Plaintiff-landlord, agreeing to surrender the land at the end of Jaistha 1355 B.S. He also agreed to pay damages at the rate of Rs. 2 per diem for the period of overstay in case he failed to vacate the suit land in terms of the istafanama.
(2.) Sambhu Charan overstayed and thereupon the landlord recovered an ex parte decree for damages against him in a Small Cause Court Suit (No. 581 of 1948) brought for the purpose. The decree was made at the stipulated rate of Rs. 2 per diem and an application (Misc. Case No. 178 of 1948 under Order IX, Rule 13 of the Code of Civil Procedure) for setting it aside was eventually "dropped" and dismissed for non-prosecution on the death of the applicant Sambhu Charan in or about April, 1949. Thereafter, on July 29, 1949, the present suit was brought for eviction of the Defendant who is Sambhu Charan's son and who has admittedly been continuing in occupation of the suit land since his father's death. In this suit there was also a prayer for recovery of damages at the rate of Rs. 2 per diem from Sraban 25, 1355 B.S., to the end of Asdr 1356, B.S.
(3.) The defences material for my present purpose were: (i) that the unregistered istafanama (Ex. 2) was invalid in law to terminate the suit tenancy which had been created by the registered kabuliyat (Ex. 1); (ii) that the said istafanama, stipulating delivery of possession at a subsequent date, was invalid as a deed of surrender and has not, therefore, the effect of terminating the Defendant's tenancy; and (iii) that the suit was time-barred under Article 1(a) of sch. III of the Bengal Tenancy Act. 3. The claim for damages was also challenged as excessive and penal. The defences to the Plaintiff's claim for ejectment have been overruled by both the courts below and the Plaintiff has been given a decree for ejectment. On the claim for damages, the learned munsif's finding was that the rate of Rs. 2 per diem, claimed in the plaint on the strength of the stipulation in Ex. 2, was penal and relief was given to the Defendant under Section 74 of the Indian Contract Act by reducing it to reasonable compensation at the rate of Rs. 20 per annum and a lump decree for Rs. 20 was made by the learned munsif for the period claimed in the suit.;