Norman Macleod, Kt., C.J.
1. The plaintiff sued to recover possession of the suit property alleging that the same belonged to him, having been rented by the defendant under a rent note dated May 5, 1913. The defendant raised various defences to which I am not going to refer in detail, It is sufficient to say in passing that they did defendant little credit, and only raised a prejudice against him in the Courts, In the trial Court be attempted to show that the lavanchitti, Exhibit 12, was obtained by misrepresentation, but failed to prove that, So it was held that-he was bound by the lavanchitti and that he forfeited hie occupancy rights by having failed to pay rent for five years.
2. It cannot be disputed that the defendant's name was in the bot khat as an occupancy tenant, paying rent according to the appraisement. That would give the plaintiff Khot about eight maunds of paddy annually. According to the lease the tenant had to give six maunds and was not liable to enhancement. But the Judge omitted to notice that the defendant had to pay assessment, and as the cash payment for six maunds was Rs. 12, and the assessment was Rs, 4-0-6, it seems obvious that the rent payable under the lavanchitti, taken together with the assessment, was practically the same as the defendant had to pay under the bot-khat. The trial Judge gave the plaintiff a decree directing that the defendant should deliver possession of the land described in the plaint, and pay Rs. 72 as rent for the six years in arrears. He further directed an inquiry with regard to mesne profits.
3. In appeal the Judge said that the only point was whether the lavanchitti had been fraudulently obtained by the plaintiff as alleged by defendant. He found that issue in the negative, and agreed in other respects with the trial Court. Only he thought that as plaintiff has taken Rs. 100 from the tenant when the lavanchitii was passed, the plaintiff ought to pay back that sum before taking possession.
4. I do not think that either of the Courts below recognised the importance of the bot-khat which is the record under the Khoti Settlement Act of the terms according to which various classes of occupants hold their lands, Section 33 says 'rent payable to the Khot by privileged occupants shall be as follows' : There are three classes mentioned : Dharekari, Quasi-Dbarekari, and any permanent tenant. Rent would be payable 'in each case according to the terms of the entry in the survey-record made in respect thereof, and for the time being applicable thereto, under the following rules.' Rule II (1) (6) provides that if there is any agreement between the parties after the amounts have been fixed in the hot khat, then the parties should appear in person or by duly authorized agent before the Recording Officer and consent to the entry being wade altering the terms under which the tenants held the lands.
5. It seems to me that the whole scheme of Section 33 of the Khoti Settlement Act is to prevent arrangements being made in anum authorised way by the Knots with the tenants contrary to the terms of the bot-khat, And in this case if the defendant had admitted that he held as occupancy tenant according to the terms of the bot-khat, and was bound to pay rent according to those terms, he would have had the Courts entirely in his favour. Unfortunately he denied the validity of the lavanchitti, he denied apparently the plaintiff's title as Khot, and he asserted that he was entitled to hold the land on payment of assessment only.. We think that the right which lay in the plaintiff was to recover the rent as fixed in the bot-khat, and that the lavanchitti was not a valid document, as it had not been registered before the Recording Officer.
6. The result will be that the plaintiff' is entitled to recover rent according to the bot-khat. There is no reason why the defendant, considering his conduct, should not be ordered to pay Rs. 72 which are in arrears according to the bot-khat. The plaintiff, however, has already recovered Ks, 100 under the terms of the lavanchitti. Therefore, we leave the order for payment of Rs. 72 as it stands in the decree of the lower Court, and we also declare that the defendant is entitled to set off any money paid by him to the plaintiff under the lavanchitti. In other respects the suit is dismissed, but without costs.
7. I agree in holding that the lavanchitti sued upon in this case is not valid and binding on the defendant. In the year 1890 there were disputes between the Khots of this village and the tenants. A decision was arrived at by the Settlement Officer, and in accordance with that decision entries were made in the Settlement Records. It is clear then that this lavanchitti executed by the plaintiff Khot in favour of the defendant in the year 1913, was an attempt to modify those entries. The third issue framed in this suit was : 'Can plaintiff challenge the entry in Survey Records and is not defendant an occupancy tenant in respect of the lands in suit' The trial Judge Bays: 'The defendant ceased to be an occupancy tenant the moment he obtained the lease, Exhibit 12, and his relations with the plaintiff were governed by the lease and not by' the provisions of the Khoti Act; hence the fact that he is described as an occupancy tenant in the bot-khat does not help him to repudiate the lease, Exhibit 12.' He accordingly passed a decree directing the defendant to deliver to the plaintiff possession of the suit-lands and to pay Rs. 72 as arrears of rent. On appeal, the defendant raised, among others, the same question, bat the appellate Judge did not deal with it. I am unable to agree with the view of the trial Judge. It was not contended before the lower Court that the defendant had resigned his land. The bot-khat continues to show his permanent tenancy. He is liable to pay rent according to the terms of the entry made in the Survey-Record. The agreement as to rent contained in the lavanchitti was not given effect to in the manner provided by Section 33, Rule 2 (6), of the Khoti Settlement Act. In my opinion, the rights and obligations of the parties continue to be regulated by the terms of the entries contained in the Settlement-records.