1. This is the plaintiff's second appeal against the decree of Mr. P. K. Kaul, District Judge, Barabanki, dated 16th May 1944.
2. The plaintiff zamindar alleged that the defendant Mt. Badala was his tenant at the annual rate of Rs. 74-6-0 and that some of the rent for 1346 and 1347 Fasli as shown in the plaint was in arrears. Mt. Badala pleaded that she was a tenant at the rate of RS. 70 per year, but in 1344F. the Revising Officer had reduced the rent to RS. 52-8-0 and that she was not liable to pay at a higher rate. She also pleaded that the suit for 1346F. was time-barred.
3. The learned trial Court came to the conclusion that there was a new contract between Mt. Badala and the plaintiff in 1345F. and that the rent was RS. 74-6-0 per year. It also held that the rent for the whole 1347F. at the rate of Rs. 74-6-0 was due and that for 1346F. the instalment of rent which fell due on 15th May 1939 alone amounting to RS. 18-9-6 is within limitation. Accordingly the suit was decreed for RS. 92-15-6 with interest and proportionate costs. Mt. Badala went up in appeal and there the learned lower appellate Court admitted certain additional evidence, namely, khataunis of 1343 and 1344F., to ascertain whether Mt. Badala was right in saying that actually the Revising Officer had reduced the rent to Rs. 52-8-0. This evidence was produced with notice to the counsel of both the parties and without objection from any of them and without any request that an opportunity for producing rebutting evidence may be given. When these documents came before the learned District Judge he considered the evidence and was satisfied that notwithstanding the patta of the new tenancy set up by the plaintiff the defendant Mt. Badala was an old tenant as she had not been ejected in execution of the decree for ejectment obtained by the plaintiff on 2nd June 1936 and that the patta at the most was an agreement for enhancement of rent which enhancement could not be made by the plaintiff. The Court accordingly held that Rs. 52-8- 0 was the rate payable and that Rs. 13-2-0 were payable for 1346F. plus Rs. 2-9-0 interest and RS. 17-8-0 as arrears for 1347F. plus Rs. 2-3-3 as interest thereon. Total RS. 35-6-3 proportionate costs of the trial Court were granted and the appellant was directed to bear the costs of the defendant in the appellate Court.
4. In appeal it was urged that the learned District Judge was wrong in admitting fresh evidence without any reason or justification, that an opportunity to produce rebutting evidence should have been given, that relavant evidence was not considered and the learned lower appellate Court was wrong in holding that, there was an enhancement of rent but it was illegal and that it should have been found proved that there was a fresh contract of tenancy between the plaintiff and Mt. Badala at the rate alleged.
5. Now, it appears that a request was made to the Court in the interest of justice to send for the khataunis. Both the parties acquiesced in the production of the additional evidence and it has been held in Jagarnath Pershad v. Hanuman Pershad, 36 I. A. 221: (36 Cal. 833 P. C.), that if there is any irregularity in admitting additional evidence in an appeal that will be cured if the parties consent thereto. In these circumstances it is not any longer open to the appellant to say that the additional evidence was improperly admitted.
6. The appellant has urged that after these khataunis were produced the learned appellate Court came to the conclusion that from these documents it was clear that the patwari had wrongly stated in the trial Court that the original tenant was Ram Adhin, the husband of the appellant, who had been ejected in 1344F and that this finding was given behind the back of the patwari who ought to have been summoned to explain the discrepancy. It might have been better if the patwari had been called to explain his erroneous statement, but it is clear that this had not led to any erroneous decision. The documentary evidence is perfectly clear that it was Mt. Badala and not her husband who was the tenant and that initially her rent was RS. 70 per year and that it was reduced by the Revising Officer by Rs. 17/8 in 1344F. The patwari himself said that Alt. Badala's rent was RS. 70 in 1343 F. There is on the record the remission slip for 1338F issued by the patwari himself to Mt. Badala as tenant and this document had been filed in Court some days before the patwari was examined. It also appears that in respect of the years 1342 and 1343 F the plaintiff obtained a decree against the defendant Mt. Badala under Section 61, Oudh Rent Act. It is clear therefore that the tenant was Mt. Badala and not her husband and the patwari's statement was obviously due to some error.
7. It has been urged that the learned lower Court has gone wrong in construing patta dated 3rd July 1937 as an agreement for enhancement of rent. This contention appears to be correct.
8. The lower Court has stated that there is no evidence that the decree of ejectment obtained in 1936 against the respondent was ever executed and that the alleged new patta covers exactly the same land as the respondent held at the time of the decree and the only new thing is that the rent has been fixed at Rs. 74/6 an amount higher than that which was being paid up to the time of suit for ejectment. He accordingly held that the alleged patta must therefore be treated only as an agreement for enhancement. He held it to be illegal presumably because under the law an enhancement equal to 1/3rd of previously payable rent i. e. Rs. 17/8 could be made whereas the actual enhancement was Rs. 74/6 minus 52/8: Rs. 21/14.
9. There is no doubt that there is no evidence that Mt. Badala respondent was actually ejected in execution of the decree. Although she remained in possession after the passing of the decree, it cannot be said that she remained so in the same capacity as that in which she held it before the decree. In Mohammad Mehdi v. Barhu, 1941 R. D. 166, it has been held following Kaniz Baqar v. Mt. Lakhraji, 1940 O. W. N. 1014 : (A. I. R. (29) 1941 Oudh 70), that after a decree under Section 61, Oudh Bent Act has been passed against a tenant, the tenant ceases to be tenant from the date of decree of ejectment and becomes a person to whom Section 127, Oudh Rent Act applies. Under that section the person in possession is a trespasser and the landlord has the option either to treat him as a new tenant on a rent to be fixed by the Court or to eject him as a trespasser. This view of the Board of Revenue has again been followed in Ahmad Ali v. Mathura Prasad, 1942 R. D. 476. No authority to the contrary has been shown on behalf of the respondent. I see no reason to take a different view. Mt. Badala the respondent after the passing of the decree of ejectment then became a person governed by Section 127, Oudh Bent Act. Under that section, Mt. Badala ceased to have any of the statutory privileges conferred by the Oudh Rent Act. Accordingly there was nothing in law or in any enactment in force to prevent Mt. Badala from entering into a fresh agreement with the landlord or in agreeing to pay rent irrespective of the provisions relating to enhancement of rent under the Oudh Rent Act. In these circumstances there is no reason to treat the patta of 3rd September 1937 as other than what it professes to be. The rent agreed upon is Rs. 74/6 per year which the plaintiff claimed.
10. It was urged for the respondent that even if that was the rent agreed upon, it cannot be claimed as in another suit between the parties for rent of 1348 and 1349 F, the suit was decreed at Rs. 52/8 per year. The judgment in that suit Ex. A1, dated 31st January 1942, is on the record. The respondent filed a copy of the written statement and a copy of the deposition of the plaintiffs mukhter am in that suit. These two documents were neither admitted nor denied nor was evidence led to prove them. In the written statement filed in the present suit it was pleaded that the decision in the suit for 1348 and 1349F was res judicata but no issue was framed; the point was not argued before the trial Court nor was the point taken before the lower appellate Court although the respondent was the appellant there. In these circumstances the point cannot be allowed to be taken in this second appeal.
11. I am therefore satisfied that the correct rate of rent is Rs. 74/6 per year. For 1346 F the plaintiff can claim only the arrears due on instalment payable on 15th May 1939 i. e. Rs. 18/9/6 plus interest at 61/2 per cent. up to date of suit amounting to Rs. 3/5/6 and for 1347F he will get what he claimed i. e. Rs. 39/6 plus Rs. 4/10 as interest. The decree of the lower Court is therefore modified and plaintiff's suit is decreed for Rs. 65/15 plus interest at 3 per cent. from date of suit till realisation. The plaintiff will get half his coats of this appeal from the respondent. The plaintiff will also get 2/3rds of his costs of the trial Court from the defendant respondent. The parties shall bear their own costs of the lower appellate Court.