1. The defendant-tenant of an ex-proprietary holding desires to escape payment of rent on two grounds: First, that he did enter into an agreement for payment of the rent to his usufructuary mortgagee Mithan Lal, but that Mithan Lal's transferee who redeemed the mortgage was not entitled to take advantage of that agreement. Secondly, that the agreement itself was not enforceable because the rent was not fixed under Section 36, Land Revenue Act, and no rent fixed otherwise than by the revenue authority may be recovered from an ex-proprietary tenant.
2. There is no force in the first ground of objection. The defendant Nathu sold his equity of redemption to the plaintiff Ganpat Singh. Thereupon Ganpat Singh redeemed a mortgage of 11 bighas 6 biswas out of 17 bighas 6 biswas from Mithan Lal. He is, therefore, the successors-in-interest of Mithan Lal and can enforce an agreement entered into between Mithan Lal and Nathu. Mithan Lal has no objection to the portion of the rent proportionate to 11 bighas 6 biswas being recovered separately by Ganpat Singh. The defence comes particularly with a bad grace from Nathu when he himself sold the equity of redemption and must have understood the probable consequences of a redemption by Ganpat Singh.
3. The other point is covered by authority of a single Judge of this Court: In Sri Kantoo v. Imdad Ali A.I.R. 1924 All. 944 the learned Judge observed:
The duty, of fixing the rent under Section 36, Land Revenue Act, is laid, in the first instance not on the parties but on the mutation Court though a right is reserved to the parties to apply subsequently if the revenue Court omits to make an order. I can find nothing in this to prevent the parties agreeing upon a rent which is not above the legal maximum nor do I see any reason why such rent if agreed upon by the parties, should not bo recoverable by them in the Courts.
4. The real question for decision, therefore, will be whether the rent agreed upon was in accordance with the limit laid down in Section 36, Land Revenue Act, or not. The lower appellate Court has held that the rent agreed upon was not in excess of that which would be fixed under Section 36. The rent is, therefore, recoverable. I dismiss the appeal with costs.