BACHU NARAIN SINGH Vs. MOHAMMAD UMRAO

JUDGEMENT

(1.) This is an appeal by the defendants against a decision of the Additional Subordinate Judge of Patna, revers-ing a decision of the Munsif of Barh. The appeal arises out of a suit for rent for the years 1339 to 1341 at the rate of Rs. 250 per annum. In 1924, the defendants obtained from the proprietor a thika of the land in respect of which the rent is claimed for a period of seven years expiring in 1337 Fasli. In 1935, the proprietor granted a mukarrari to the plaintiff. The plaintiff alleges that at that time the defendants were holding over after the expiry of the term of their thika and claims rent at the thika rate. The defendants pleaded that on the expiry of the thika in 1337 the proprietor re-let the land to them at Rs. 6 per bigha or Rs. 108 per annum and that they have paid the proprietor at this rate Up to and including 1341. They denied that they had any knowledge of the mukarrari granted to the plaintiff or that the relationship of landlord and tenant existed between themselves.

(2.) The Court below has not accepted the defendants plea that there was a resettlement with them by the proprietor on a reduced rent on the expiry of the original thika but held that the defendants were liable either for rent at the rates stipulated in the thika or for damages for use and occupation, the damages being calculated at the rate of rent reserved by the thika. In this appeal it is contended on behalf of the appellants that Section 79, Bengal Land Registration Act, 1876, indemnifies them against the claim made by the plaintiff. That Section is as follows: The receipt of any proprietor, manager or mortgagee whose name and the extent of whose interest is registered under this Act shall afford full indemnity to any person paying rent to such proprietor, manager or mortgagee.

(3.) There is no dispute that" the proprietor of a land is in fact registered under the Registration Act and the defendants produced at the trial receipts in respect of the years in suit which they alleged had been granted to them by the proprietor. But the rent receipts were at the rate of Rs. 108 which the defendants said was the rate settled after the expiry of the original thika. Now, it has been held by the Courts below that there was no re-settlement after the expiry , of the thika, and it follows therefore that the receipts at the rate of Rs. 108 cannot be genuine documents. I agree therefore with the finding of the Courts below that the defendants are not entitled to credit for the amounts which they claim to have paid to the proprietor since the expiry, of the term of the thika. This view of the matter disposes of the argument based by the learned advocate for the appellants on Secs.67 and 72, Tenancy Act, and Section 79, Registration Act, for, in each case it is necessary for the appellants to prove that they had in fact paid rent to the proprietor subsequent to the expiry of the term of thika. The Court below, as I have already said, held that the plaintiff was entitled to recover damages-for use and occupation even if he were not entitled to the rent. With regard to that is contended on behalf of the appellants that they cannot be said to have been holding over after the expiry of the term of thika, because the plaintiff did not consent to their doing so. It appears from the evidence of the plaintiff himself that from 1937, when the thika expired, he objected to the defendants remaining in possession of the land as tenants. 5. On behalf of the plaintiff it is contended that in 1342 they served a notice on the defendants requiring them to quit the land or to pay rent at Rs. 250 a year and it is said that this was an acceptance by the plaintiff of the defendants as their tenants. It was also contended on behalf of the respondents that the institution of the suit itself amounted to an assent to the defendants holding over. Reference is made to the decision of James J. in this Court in Ramsundar Tewari V/s. Dulhin Gataso Kuer AIR (1935) Pat 271. Where there is nothing to indicate that the landlord has declined to consent to the tenant holding over after the expiry of the lease, the institution of a suit for rent may well be deemed to be an expression of assent to his holding over. Bui when the landlord, according to his own admission, has for four or five years protested against the defendant holding over and then has instituted a suit for rent, I do not consider that to amount to a consent to his holding over from the expiry of the period of the thika. 6. It is inconsistent with the landlord's conduct and can merely be evidence that after a period of years the landlord himself changed his mind with regard to what he wanted to do. I would therefore hold that in the present case the plaintiff is not entitled to recover rent from the defendants. The next question is whether the decree of the Court below awarding damages for use and occupation should be upheld. On behalf of the appellants reference is made to a decision of the Calcutta High Court in Bhukhi Koeri V/s. Ram Khelawan Prosad 17 CWN 311 where a Division Bench held that in a suit for rent, where no alternative claim is made for compensation for use and occupation, no amount can be decreed on that footing. 7. The Court however pointed out that in a proper case the plaintiff might be allowed to amend his plaint but that such an amendment should be allowed only where a claim has been omitted by mistake or inadvertence or for similar reasons, and not deliberately. If the facts alleged by the plaintiff in the present case were such as would support a claim to recover damages for use and occupation, I would have no hesitation, even at this stage of litigation, in allowing the plaint to be mended so as to include an alternative claim for damages; but the case which the plaintiff pleaded was based on the relation-ship of landlord and tenant and it was that case which the defendants had to meet all through this litigation. 8. In these circum-stances I do not think it would be justifiable in second appeal to direct the plaintiff to change the ground of his claim. I would therefore set aside the decision of the Court of Appeal below and dismiss the plaintiff's suit. In view of the defence set up by the appellants in respect of the alleged re-settlement after the expiry of the original thika. I would direct each party to bear its own costs in this appeal.