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Sheo Nandan Rai and ors. Vs. Thakur Rai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Judge
Reported in2Ind.Cas.31
AppellantSheo Nandan Rai and ors.
RespondentThakur Rai
Excerpt:
exproprietary tenancy - rent not determined by revenue court covenant to pay rent at certain rate--fair rate. - .....court. upon the first question the court of first instance held that rs. 12 a bigha was a fair rate of rent and that the defendant was bound by his covenant. the lower appellate court has dismissed the suit on the ground that unless the plaintiffs formally obtained from the revenue court a determination of the rent payable by the defendant the defendant was not liable to pay any rent for his exproprietary holding. in my opinion this view of the learned judge is erroneous. upon the sale of his proprietary rights the defendant acquired the right of an ex-proprietary tenant as defined in section 7 of the rent act. as such tenant he acquired a right of occupancy and also a right to pay rent at a rate which is four annas in the rupee less than the prevailing rate payable by.....
Judgment:

Bannerji, J.

1. The defendant sold his zamindari rights to the plaintiffs. The sale-deed contained covenant to the effect that if possession was not delivered over the sir land of the vendor he should pay rent for such land at the rate of Rs. 12 a bigha. The plaintiffs brought this suit to recover arrears of rent of the land, which before the sale was the sir-land of the defendant, at the aforesaid rate. The suit was defended on two grounds; (1) that the plaintiffs had not obtained a determination of the defendant's rent as an ex-proprietary tenant under Act No. XII of 1881 and were not, therefore, competent to claim arears of rent, and (2) that the covenant as to the payment of rent at the rate of Rs. 12 a bigha was embodied in the sale-deed without the defendant's knowledge. Upon the second point the Court of first instance decided against the defendant. That finding was not questioned by the defendant in the appeal which was preferred by him to the lower appellate Court. Upon the first question the Court of first instance held that Rs. 12 a bigha was a fair rate of rent and that the defendant was bound by his covenant. The lower appellate Court has dismissed the suit on the ground that unless the plaintiffs formally obtained from the Revenue Court a determination of the rent payable by the defendant the defendant was not liable to pay any rent for his exproprietary holding. In my opinion this view of the learned Judge is erroneous. Upon the sale of his proprietary rights the defendant acquired the right of an ex-proprietary tenant as defined in Section 7 of the Rent Act. As such tenant he acquired a right of occupancy and also a right to pay rent at a rate which is four annas in the rupee less than the prevailing rate payable by tenants-at-will for land of similar quality and similar advantages. If a tenant of that description has entered into a contract with the landlord to pay rent at the rate agreed upon between him and the landlord and such rate is not in contravention of the provisions of the law, the landlord is entitled to recover rent at the stipulated rate. In the case of Shaikh Rahat Ali v. Ghulam Rasul Khan Second Appeal No. 810 of 1888, decided by a Bench of two Judges on 9th July 1891, it was said: 'Prima facie the defendant was bound by his covenant and his admission of tenancy to the plaintiff. It was for the defendant to show that there was some fraud practised upon him in the agreement or that the covenant was contrary to law. He might have shown for instance, if it had been a fact, that Rs. 10 per bigha exceeded the rent allowed to be taken from an ox-proprietary tenant by Section 7 of Act XII of 1881.' This case was followed in Letters Patent Appeal No. 16 of 1898, decided on the 23rd December 1898. According to these rulings the defendant was bound by his covenant, but it was open to him to show I hat the covenant was obtained from him by fraud or that it was contrary to law. In this case the defendant alleged that the covenant as to rent had been inserted in the sale-deed without his knowledge, but that statement was found by the Court of first instance to be untrue. As I have said, that finding was not questioned by the defendant in his appeal to the lower appellate Court. He did not urge either in the first Court or in the lower appellate Court that the rate of Rs. 12 a bigha was a rate which was in excess of that payable under Section 7 of the Rent Act. The lower appellate Court was, therefore, wrong in holding that merely because the plaintiffs had not applied to the Revenue Court for a determination of the defendant's rent they were not entitled to get from the defendant the rent which he covenanted to. pay. I allow the appeal, set aside the decree of the lower appellate Court with costs and restore the decree of the Court of first instance. The appellants will get the costs of this appeal which will include vakil's fees on the higher scale.


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