1. This is an appeal on behalf of the plaintiff in a suitfor recovery of possession of land and mesne profits.

2. The plaintiff alleged in the plaint that the disputedland was comprised in a tenancy held under him by the defendants, who arearranged in two sets. The first eight defendants, who may be described as theBiswas defendants, are interested in an one-third share of this tenancy; theninth defendant, who may be described as the Ghose defendant, is interested inthe remaining two-third share of the tenancy. The plaintiff alleges that thedisputed land was comprised within the two-thirds share of the tenancy held bythe Ghosh defendant, that the Biswas defendants wrongfully kept the Ghosh defendantout of possession, that consequently the Ghosh defendant on the 13th April 1904surrendered this land in favour of the plain-till, and obtained a reduction ofthe rent payable under the lease granted in his favour on the 2nd June 1897.The plaintiff, therefore, seeks to recover possession of the disputed landtogether with mesne profits in respect thereof.

3. The Biswas defendants have resisted the claimsubstantially on the ground that they were not. in possession of any portion ofthe disputed land which was not covered by their one-third share of thetenancy. The Ghose defendant has resisted the claim on the ground that theverbal surrender alleged by the plaintiff was not true, and even if true, itwas not operative in law; consequently, the plaintiff was not entitled torecover possession.

4. Upon these allegations seven issues were raised in theCourt of first instance, one of which was to this effect: "Whether theplaintiff had any cause of action against the defendants" The learnedSubordinate Judge held that the oral evidence was not admissible to prove thealleged partial surrender and, reduction of rent, that consequently the tenancyof the Ghosh defendant must still be regarded as operative: and that in thisview the plaintiff was not entitled to recover possession of the land. Onappeal the learned District Judge has affirmed this decision.

5. The plaintiff has now appealed to this Court, and on hisbehalf the decision of the District Judge has been assailed on three grounds,namely, first, that notwithstanding the provisions of section 92 of the IndianEvidence Act, it was open to the plaintiff to prove the verbal surrender andabatement of rent by oral evidence; secondly, that if oral evidence was notadmissible, evidence of conduct was admissible for the purpose and, thirdly,that the plaintiff ought to be allowed to obtain a declaratory decree on thefooting that the Ghosh defendant was still a tenant under him in respect of thedisputed land. In our opinion, there is no foundation for any of thesecontentions.

6. In so far as the first ground urged on behalf of theappellant is concerned, it is clear that under section 92 of the Evidence Act,oral evidence was not admissible to prove the alleged surrender and abatementof rent. Section 92 provides that "when the terms of any such contract,(that is, a contract mentioned in section 91), grant or other disposition ofproperty, or any matter required by law to be reduced to the form of adocument, have been proved according to the last section, no evidence of anyoral agreement or statement shall be admitted as between the parties to anysuch instrument or their representatives-in-interest, for the purpose ofcontradicting, varying, adding to, or substituting from its terms." Thefourth proviso to the section lays down that the existence of any distinctsubsequent oral agreement to rescind or modify any such contract, grant ordisposition of property, may be proved, except in cases in which such contract,grant or disposition of property is by law required to be in writing, or hasbeen registered according to the law in force for the time being as to theregistration of documents." It is conceded in the case before us that thelease in favour of the Ghosh defendant granted on the 2nd June 1897 was dulyregistered. Consequently, under the fourth proviso to section 92, the existenceof a distinct subsequent oral agreement to rescind or modify the originalcontract cannot be proved. The learned Vakil for the appellant has placedreliance upon the decision of this Court in the case of Khonkar Abdur Rahman v.Alt Hafez 3 C.W.N. 351 : 28 C. 256 to show that oral evidence is admissible toestablish the subsequent surrender and abatement of the rent. That decision,however, when carefully examined, shows that oral evidence is not admissiblefor the purpose. In fact there is a series of decisions of this Court whichcompletely negative the contention of the appellant. In the case of Dwarka NathChattopadhya v. Bhogoban Panda 7 C.L.R. 577, an attempt was made to prove thatafter a lease had been granted, rent was reduced by a verbal arrangementbecause it, had been found that the landlord was entitled not to the entiresuperior interest but only to a portion thereof. It was ruled by this Courtthat oral evidence was not admissible to prove the alleged verbal arrangementand consequent reduction of rent. The same view was adopted in the cases ofBanko Behari Sanyal v. Sharma Churn Bhattacharji 2 C.W.N. cclxv.; Radha RamaChaudhry v. Bhawani Prasad Bhomik 5 C.W.N. ccxcvi. A similar view has beenadopted by the Madras High Court in the cases of Mayandi Chetti v. Oliver: 22 M. 261. and Karampalli Muni Kurup v. Thekhu VittilMuthorakutti 26 M. 195. In the, first of these cases, it was alleged that thelessor of certain land, held by the lessee under a registered deed of lease,had agreed to a reduction in thereat. The agreement was not reduced to writingbut the rent was thereafter paid and accepted at the reduced rate. In a suitbrought to recover arrears of rent at the rate reserved in. the registeredlease, it was held that under proviso 4 to section 92 of the Indian EvidenceAct, an agreement to accept a reduced rent could not be implied or inferredfrom the acts and conduct of the parties; and an unwritten agreement, if soimplied, amounts to an oral agreement within the meaning of the proviso. Thisview is also supported by the case of Lakhatulla v. Bishambar Roy: 6 Ind. Cas. 577 [LQ/CalHC/1910/262] , where it was ruled by Jenkins, C.J. that anagreement is none the less oral because it is to be inferred from the conductof the parties. Oral evidence is, therefore, not admissible to prove thevariation alleged by the plaintiff, and the first argument advanced on behalfof the appellant must be overruled.

7. In so far as the second argument is concerned, it issuggested that evidence of conduct -was admissible to prove that there had beena subsequent surrender and abatement of rent. In support of this propositionreliance has been placed upon the case of Khonkar Abdur Rahman v. Ali Hafez 3C.W.N. 351 : 28 C. 256. The argument is also sought to be supported by the caseof Shama Charan Mondol v. Heras Mollah : 26 C. 160, in whichreference was made to the decision of a Full Bench of this Court in Preo NathShah v. Madhusudan Bhuiya 25 C. 603. It has been farther urged that theargument receives support from the cases of Beni Madhab Gorani v. Bal MotiDassi 6 C.W.N. 242. and Satyesh v. Dhunpul 24 C. 20, But even if we assume thatthese cases give a correct exposition of the law, the difficulty of theappellant is that in the Courts below no suggestion was made that any evidenceof conduct was admissible to prove the alleged partial surrender and abatementof rent. In this Court the learned Vakil for the appellant, when invited tospecify the conduct upon which his client relies in support of the alleged oralvariation of the original agreement, stated that the only conduct he couldmention was payment of rent at a reduced rate. But that is manifestlyinsufficient to establish the alleged surrender because whether there was asurrender or not, abatement of rent would be consistent with the case that thetenant upon failure to obtain possession of all the lands comprised in hisshare of the tenancy, had, under section 52 of the Bengal Tenancy Act, obtainedan abatement of the rent. We may add that there was no suggestion in the plaintor in either of the Courts below that any evidence of conduct was available toestablish the alleged surrender. It is extremely unlikely that any suchevidence can be available, because the allegation of the plaintiff is that thesurrender took place on the 13th April 1904 and the present action wascommenced on the 14th September 1906. It is improbable that there could havebeen any such conduct in the interval as would justify an inference that therehad been a partial surrender of the land and a permanent reduction of the rent.In our opinion, there is no substance in the second contention advanced by theappellant which is consequently overruled.

8. In so far as the third contention urged on behalf of theappellant is concerned, it is plainly inconsistent with the position taken upin the first two arguments addressed to us. It has been contended, on the authorityof the decision in Bissesuri Dabeea v. Baroda Kanta Roy Chowdhry: 10 C. 1076, that if the plaintiff is not entitled to obtaina decree for possession of the disputed land, a decree for a declaration of histitle, and for a further declaration that he is entitled to possession throughhis tenant, the Ghosh defendant, may be made in his favour. In our opinion,there is no foundation for this contention and the case on which reliance isplaced is distinguishable on two grounds. In the first place, in the case ofBissesuri Dabeea v. Baroda Kanta Roy Chaudhry : 10 C. 1076,the plaintiffs were unable to recover rents from their nim howladars becausethe latter had been dispossessed from the land of their tenancy by a neighbouringZemindar; accordingly they sued for a declaration of their howla rights in theestate and for possession as before, that is, for possession of the landthrough the nim howladns. Under the circumstances, it was held by this Courtthat it was open to the landlord, where his title was in jeopardy from theaggressions of a neighbouring Zemindar and might be damaged by a denial of hisrights to the land, to bring a suit for the purpose of declaration of hisrights as against such wrong-doers and for possession of the land as againstthem. This doctrine has no application to the circumstances of the presentcase, if it be true that the Ghosh defendant has been dispossessed from thedisputed land by the Biswas defendants. The Biswas defendants claim to occupythe disputed land as included in their one-third share of the tenancy. They, aswell as the Ghosh defendant, admit that the disputed land is included withinthe zamindari of the plaintiff. The controversy is only between the two sets ofdefendants; the Biswas defendants allege that the disputed lands are includedin their share of the tenancy, the Ghosh defendant in his turn claims them asincluded within his share. Plainly, this controversy does not jeopardise therights of the plaintiff. In the second place, the case of the plaintiffthroughout has been not merely in the Courts below, but also in this Court,that the Ghosh defendant has surrendered possession of the disputed land, thathis tenancy has terminated, and that consequently the plaintiff has"become entitled to recover the land from the Biswas defendants astrespassers. He cannot now be permitted to turn round and urge that the tenancyof the Ghosh defendant still continues operative and that he is entitled topossession only through the Ghosh defendant as his tenant. To allow theplaintiff to do so, would be, in the language of Mr. Justice Straight, topermit a plaintiff, who has come into Court with one case and hopelessly failedto prove it, to succeed upon another case and that directly in antagonism withhis primary allegation." Hamilton v. Land Mortgage Bank 5 A. 456 at p.459. The third ground, therefore, is wholly unsustainable.

9. The result is that the decree of the Court below isaffirmed and this appeal is dismissed with separate costs for each set ofdefendants.

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Kumar Sarat Chandra Sinhavs. Nritya Gopal Biswas(24.08.1910 - CALHC)