HARINATH BANERJEE Vs. PRAMATHANATH DEY CHOWDHURY

JUDGEMENT

(1.) THIS is an appeal by the plaintiff from a decision of the learned District Judge of Jessore, dated the 30th March 1916, reversing the decision of the Subordinate Judge of the same place. The suit was brought to specifically enforce a contract contained in a document called a bainapattra. A bainapattra is, as I understand from the slight knowledge that I have of the vernacular, a document evidencing a deposit, and the deposit that was evidenced in this case was a sum of Rs. 785 that was paid for the grant of a permanent putni lease. The suit has been decided in the Court below on one and only one point, and that is this; that the bainapattra is a lease or an agreement for a lease within the meaning of the Indian Registration Act and it not having been registered, having regard to Section 49 of the same Act, the document is inadmissible in evidence for any purpose whatsoever. The view of the learned Judge that the document cannot be admitted in evidence for any purpose what soever seems to me far beyond the decisions of this Court. It cannot be used for the purpose of affecting the land, that is quite clear, and the document, if it is the actual demise, clearly requires registration before it can affect the property itself. But there are cases in this Court that decided that in a suit for specific performance between the parties themselves to the contract, the, contract can be looked at for the purpose of adjusting their personal liabilities. A decree for specific performance does not affect the land. It is an ordinary decree of the Court of Equity, and the ordinary rule is that equity acts in peteonum and the execution of the decree is not by affecting the land but by suitable process against the defendant, if he is in contempt with reference to the decree of the Court. I do not think, we ought to express a view in this case whether this bainapattra is or is not a lease or agreement for a lease. It seems to me to turn considerably on what was done under the terms of the document. I must confess that in this case the plaint is drawn exceedingly unfavourably to the plaintiff and the written statement is equally unfavourable to the defendants. I think it must have been done per incurium, because my experience of the mofussil pleadings is that they are always drawn most favourably to the parties for whom they are intended and with slight regard to the actual facts of the case. In this case, we ought to have the facts found in the first instance. The case turns largely on the facts as to whether this document is a lease, whether possession was given under it and whether a case has arisen for specific performance, namely, whether the plaintiff was ready to perform his part of the contract, and the defendants were unwilling to perform theirs. Not a single one of these points has been considered in this case. All that the learned Judge says is that this document is inadmissible for any purpose whatsoever and; the suit; must, therefore, fail. But on the view he took, he ordered the defendants to return to the plaintiff the deposit money of which the only evidence was, as far as I can see, this document that was held to be inadmissible m evidence. The case cannot be dealt with, in that way. I think the case must be sent back; to the learned Judge of the lower Appellate Court to be properly and thoroughly determined on the facts and the issues arising in the case. It is not convenient in this class of cases that the Court should determine a case of this nature purely on the question of the admissibility of the evidence. My experience is that where the learned Judge does that, in a large percentage of cases the case has got to be sent back to have the facts found. The suit cannot be disposed of in this way where questions of fact are involved without considering the evidence. I think that the view of the learned District Judge that this case could be decided on a mere consideration of the document itself without going into any question of evidence is wrong. "We ought, therefore, to set aside the judgment appealed against and allow the appeal and the cross-objection and send the case back to the lower Appellate Court to be thoroughly heard on the merits and have proper findings of fact arrived at. Costs of the appeal and also of the cross-objection will abide the result of the rehearing by the learned Judge of the lower Appellate Court. Newbould, J.

(2.) I agree.