1. This second appeal by a plaintiff arises out of a suit brought by him as sub-tenant of a certain holding against the defendants-respondents as his own sub-tenants is respect of part of the holding. The suit is based upon a kabuliyat, dated 18th July 1823, which expresses the acceptance by the defendants of certain land, for one year on a rental of Rs. 139-2-0. The year in question was 1331 Fasli equivalent to July 1923 24 The claim concerns not only that year but the kharif portion of the following year 1332 Fasli. There are thus two causes of action. One is based on the contractual agreement created by the kabuliyat and one is based upon the liability of a tenant holding over to pay rent. Such joinder of causes of action is permitted by Order 2, Rule 3, Civil P.C., and that rule is not excluded by Section 192, U.P. Tenancy Act 2, 1901 from applying to suits under the Tenancy Act.
2. The suit was resisted in the trial Court on the ground that the defendants had paid a sum of Rs 240 to the Co-operative Bank in order to save their crops from attachment by the bank in relation to a debt owed by the occupancy tenants of the holding, that is to say, the lessors of the plaintiff, and consequently it was pleaded that the defendants were not bound to pay their rent as they could set off this sum against it, the plaintiff being deemed to have contracted for the defendant's peaceful enjoyment of the land leased. This plea was accepted by the trial Court.
3. In appeal the District Judge rightly held that Section 193(g) was a bar to the defendants' claim to set off in this suit. He held, however, that the lease under which the defendants held the land securing a rent of over Rs. 100 required registration and not being registered could not be proved. He therefore dismissed the suit.
4. In this second appeal the point urged is that a lease, which term includes a kabuliyat under the definition in Section 2(7), Registration Act, does not require registration if it is for a term not exceeding one year, see Section 17(1)(d), Registration Act. The reply of the respondent's counsel to this contention is that the plaintiff set up in his plaint a lease providing for an annual rent of Rs. 139-2-0. It is said that having done this he was bound to produce a registered lease.
5. This, in my opinion, is to hold the plaintiff too strictly to the language of his plaint. In this case although the plaintiff spoke in the plaint of a yearly lease, what he relied upon was in fact a kabuliyat for one year, and it is to be presumed that he filed this kabuliyat along with his plaint. The defendants can, therefore, not have been misled by the inaccuracy of description contained in the plaint, and the plaintiff is entitled to stand on the kabuliyat and not upon a non-existent lease suggested by the plaint.
6. A second point, however, arises, and this is whether the decision of the lower appellate Court can be upheld by invocation of Clause (b), Sub-section (1), Section 17, Registration Act. It is clear that the lower appellate Court relied on this provision because it refers to the fact of the kabuliyat securing a rent of over Rs. 100 Sub-section (b) provides that non-testamentary instruments which operate to create, whether in present or in future an interest in immovable property of the value of Rs. 100 and upwards must be registered. Now there is no doubt that the kabuliyat did fall within this description. But I hold that Cl (b), Sub-section (1), Section 17, must be deemed entirely to exclude leases, because there is a separate Cl, (d) which deals with leases. Where a special enactment deals with a particular thing or class of things, a more general enactment, even though its term would cover the particular thing or class of things, is excluded from application thereto by reason of the particular enactment. I, therefore, hold that the kabuliat did not require registration.
7. No argument has been addressed to me by the respondent's counsel in defence of the decision of the trial Court that the sum paid by the defendants to save the crops of the land leased to them would furnish any answer to the claim for rent. The claim for rent for the one year and the claim by the defendants for recovery of the money paid to save their crops both arise out of the contract of lease and out of breach of that contract. The plaintiff claims the rent owing to failure of the defendants to pay it and the defendants claim the money paid to save their crops from attachment owing to the plaintiff's failure to secure them peaceful possession. The latter claim is, therefore, clearly a set off against the former and in my opinion falls under Sub-section (g), Section 193, Tenancy Act. The defendants could not set it up in this case. Their only remedy is a separate suit against the plaintiff. This no doubt results in a circuity of suits, but apparently the legislature, when enacting Section 193(g), Tenancy Act, considered it more important to provide against the danger of complicating a suit for rent under the Tenancy Act than to provide against circuity or multiplicity of suits by making applicable to rent suits the provision of the Civil Procedure Code, permitting a set off. This was the view taken in the case of Brij Lal v. Mohammed Ibrahim : AIR1925All824 decided by a Judge of this Court.
8. For the above reasons I allow this appeal and decree the plaintiff's suit in full with costs throughout.