P L D 1960 Dacca 107 (PLP)

Chengtu Sarkar v. Jaheruddin Mondal A I R 1926 Cal.' 723 distinguished. A. M. Sayem for Petitioner. D. C. Bhattacharyya for Opposite‑Party. This Rule is directed against the decision of the learned Small Cause Court Judge in a suit for house‑rent.

2. The plaintiff petitioner filed a suit for recovery of Rs. 720 as house‑rent for 36 months commencing from July 1954 upto June 1957, in respect of the premises in suit at the rate of Rs. 20 per month alleging that the defendant is a bharatia (tenant) under him in respect of the premises at the rate of Rs. 20 as house‑rent per month and he has not paid the rent for the period under claim in spite of repeated demands.

3. The suit was contested by the defendant. He denied the title of the plaintiff in the land and set up a title to the East Bengal Railway of the Government of Pakistan and alleged that the plaintiff practised fraud by misrepresenting that the land in suit belonged to him and that the defendant has been paying rent to the Railway.

4. The learned Small Cause Court Judge found that the defendant failed to prove payment of rent either of the land or of the house to the Railway but at the same time threw the burden on the plaintiff to prove that he has got a valid title in the land to entitle him to get a decree for rent of the house in suit and rejected the unregistered written lease produced by the plaintiff, showing that the defendant took lease of the house from the plaintiff, on the ground that the lease was not registered and, therefore, it could not be admitted into evidence on account of the bar of the Registration Act. On that basis, the learned Judge came to the conclusion that the plaintiff failed to prove his title to the land and that he fraudulently represented to the defendant that the land belonged to him and, therefore, there was fraud and the tenant is not estopped from denying the title of the plaintiff and, in support of this view, relied on the case of Chengtu Sarkar v. Jaheruddin Mondal (A I R 1926 Cal. 723), and dismissed the suit of the plaintiff. The learned Small Cause Court Judge further held that the evidence of construction of the house by the plaintiff is also not sufficient and, therefore, in the circumstances, the plaintiff is not entitled to get any decree for rent of the house. Hence this Rule.

5. It is contended on behalf of the petitioner that the learned Small Cause Court Judge is absolutely wrong both on points of law and on facts in holding that the tenant is not estopped from denying the title of the landlord and that the plaintiff failed to prove his title in the land as well as in the house constructed there on which was let out to the defendant.

6. This contention, as it seems to me, has got considerable force. The unregistered lease produced by the plaintiff may not go to prove his title but, under section 49, of the Registration Act, it is admissible in evidence to explain the nature of possession of the defendant. The learned Small Cause Court Judge, though he referred to the Registration Act, did not care even to look into the relevant provision in the Act as to the admissibility of any document not for the purpose of proving title but for the purpose of proving the nature of possession. Further it is admitted by the defendant that he took the lease of the but from the plaintiff in January 1948, at a monthly rental of Rs. 25 which was sub sequently reduced to Rs. 20 by the plaintiff at the intervention of the Mohajir Committee and that, at the time when he came to Parbatipur in 1948, the but in suit was of straw only with kutcha floor and the plaintiff had made the but pucca. It also appears that the house was made tin‑roofed by the plaintiff. In spite of these admissions and evidence on record, it is surprising that the learned Small Cause Court Judge could not induce himself to believe that the defendant is a tenant of the plaintiff in respect of the disputed but. It is Small Cause Court suit. He had got no business to go into the question of title except incidentally for the purpose of deciding the question raised in the suit which is absolutely necessary for the decision of the case. The learned Small Cause Court Judge was absolutely wrong in relying on the case of Chengtu Sakar v. Jaheruddin Mondal and another, because it deals with the question of estoppel under section 115, of the Evidence Act and he totally over‑looked the provision of section 116 of the Evidence Act which deals with the question of estoppel between the landlord and the tenant. The learned Judge also overlooked the fact that in the case relied on by him the tenant was already in possession and was not inducted by the plaintiff whereas in the present case admittedly the defendant was inducted into the house by the plaintiff. The plaintiff's case is that he took settlement from the District Board and then from the Railway and constructed the hut. Be that as it may, there is no dispute that the plaintiff is in possession of the land and, while in possession, he constructed the disputed but 'and inducted the defendant as tenant into that hut. As to the hut, there is no dispute about the life of the plaintiff.

7. Mr. D. C. Bhattacharyya, the learned Advocate for the opposite party, could not satisfy me either by referring to any relevant provision of law or to any decided authority that the tenant inducted by the plaintiff can deny the title of the landlord during the continuance of the tenancy. In the circumstances, I think the plaintiff is entitled to get a decree for rent claimed in the suit.

8. The result, therefore, is that this Rule is made absolute with costs and the judgment and decree of the learned Small Cause Court Judge are set aside and the plaintiff's suit is decreed with costs in full. K. B. A./A. H. Rule made absolute.