1. This is an appeal by the plaintiffs against a decree of the lower appellate Court to the effect that the rent due to the plaintiffs from the defendants is at the rate of Rs. 34-10-4 per annum and not at Rs. 54 as found by the Assistant Collector. The facts which are proved are as follows:
2. In Fasli 1318 the plaintiffs obtained a decree of ejectment against Angnu, father of Rahgubir, respondent 1. The lower appellate Court has found that after this ejectment the plaintiffs came to terms With Raghubir and treated him as a tenant. The entry in the khatauni for the rent of the holding was changed after the ejectment from Rs. 34-10-4 to Rs 54 per annum. It is also found that for the year Fasli 1319 the defendant paid rent at this rate and a receipt, paper No. 31-A, of the file 10081-47 of 1923, was produced. The Court of first instance found that the plaintiff and Raghubir had agreed that rent should be fixed at Rs. 54 per annum after ejectment. The lower appellate Court considered that a registered agreement was necessary to change the rate of rent.
A person against whom a decree for ejectment is obtained but who continues nevertheless with the zemindar's permission to cultivate the land as a tenant cannot be considered to have originated a new tenancy as from the date of the ejectment decree or even as from the date of formal giving over of possession and hence the enhancement of the rent of such a person has to be by a registered agreement. Mere payment in one harvest of rent demanded at an illegal rate does not legalize such rent.
3. The learned District Judge has not referred to any section of Act 2 of 1901 for the propositions which he lays down.
4. Apparently, however, he means to refer to 'continuous holding' in Section 13(b). This provides that if a tenant is ejected under sub-S. A or B, Section 58 of that Act and within a year from the date of such ejectment he has been re-admitted by his landholder to the tenancy of the land from which he has been so ejected, he shall be deemed for the purpose of Section 11 to have held continuously. Section 11 deals solely with the acquiring of occupancy rights by holding the same land continuously for a period of 12 years. It is nowhere provided in the Act that when a tenant is re-admitted by his landholder after ejectment, the rate of rent is to be the same. If this had been the intention of the Act it would have been natural for the legislature to state so plainly in the Act. No ruling of this Court was produced on the subject.
5. For the appellants reliance was placed on Sobha Ram v. Chandra Kunwar Sel. Dec. No. 2 of 1907. In that case, there was a similar ejectment and re-admission to a holding. It was held by the Board:
The tenancy of appellants no doubt terminated with the ejectment, and apart from Section 13 there was a break between the former and the latter tenancies. Section 13 provides that the tenancy shall be deemed to be continuous, but it does so 'for purposes of Section 11' only, For calculation of the period of 12 years there was a continuous tenancy. For all other purposes there was a terminated tenancy and a fresh tenancy. I do not think that the fixing of the rent for the new tenancy can be considered to be an enhancement of a previously existing rent.
6. It was argued that this decision of the Board of Revenue was not binding on this Court. But I consider that there are general considerations of law on account of which I should follow this decision of the Board of Revenue. These considerations are briefly as follows:
7. In general it is open to a landlord and an ejected tenant to make whatever new agreement in regard to a tenancy they please. This is natural under ordinary freedom of contract. The only legal restriction placed in the way of such a contract by the parties in this appeal is the restriction contained in Section 13, Act 2 of 1901. That restriction merely lays down that for the purpose of Section 11, the holding shall be deemed to be continuous. There is no restriction whatever in Section 13 or any other part of the Act as to the rate of rent which may be agreed upon between the parties to this contract. For those reasons I consider that the agreement was not in any way fettered by law. The finding of the two Courts below is that there was an agreement, and the finding of the Court of first instance that agreement was at Rs. 54 per annum has not been set aside by the lower appellate Court. That finding was based on the new entry in the revenue papers and the actual payment at the enhanced rate for Fasli 1319. I consider that in the present case there was no need for a registered agreement under Section 47, Act 2 of 1901. Accordingly I allow this appeal with costs in this Court and the lower appellate Court and I restore the decree of the Court of first instance.