1. This appeal must be decreed. The plaintiff is the respondent in this Court. He sold to the defendant-appellant certain zamindari property and became thereby an ex-proprietary tenant of certain sir lands. On the very day on which the sale-deed was executed the plaintiff executed an agreement of rent by which he agreed to pay a sum of Rs. 170 a year as the rent of the ex-proprietary holding. On foot of this agreement the purchaser made an application in the revenue Court under Section 36 of the Land Revenue Act to have a rent assessed. The Revenue Court assessed it at the same sum of Rs. 170 as the plaintiff had agreed to pay. The order was an ex parte one. The plaintiff made an attempt to have the order set aside and the case re-heard, but he failed. Thereupon he brought the suit, out of which this appeal has arisen.
2. The plaintiff alleged in the plaint that the kabuliyat had been obtained from him by exercise of undue influence and pressure. He also alleged that the rent fixed was much higher than the rent which could lawfully be fixed for the holding. The suit failed in the Court of first instance. The learned Munsif came to the conclusion that no case of fraud or undue influence had been made out. He was also of opinion that evidence was adduced to prove fraud of a kind other than that alleged in the plaint. The learned Subordinate Judge on appeal agreed with the Court of first instance that the plaintiff was not entitled to any relief on the ground of fraud. But he accepted the argument that the kabuliyat was void as a matter of law, the effect of it being a contravention of the provisions of Section 36 of the Land Revenue Act.
3. The sole question for determination in this appeal, therefore, is whether on the ground taken up by the Court below a declaratory decree could be granted in favour of the respondent.
4. There have been some cases discussing the question whether it was open to a vendee and a vendor to arrive at an agreement as to what rent should be paid by the vendor with respect to his ex-proprietary tenancy. The latest case on the point is that of Jahangira v. Karrar Hussain (1918) 16 A.L.J. 212. An earlier case is Prag v. Sital Pershad (1914) 36 All. In the former case it was held that an agreement between the vendor and the vendee as to the rent to be paid by the former was not by itself void. So long as it was a reasonable rent that was fixed by the parties the revenue Court could accept it as a fair estimate of the rent to be paid under Section 36 of the Revenue Act by an ex-proprietary tenant. Thus, it is clear that an agreement by itself is not enforcible in a Court of justice. On the other hand, it is not a void contract. The ultimate word on the question of the amount of rent must be said by the revenue Court and that has been done in this case. The Revenue Court held definitely that the rent should be Rs. 170.
5. It is clear, therefore, that the plaintiff-respondent should not be granted any declaratory decree. The agreement by itself is not void and a prayer for its avoidance cannot be made the object of any suit. If it is allowed to stand it cannot do any harm to the plaintiff. Farther, a mere declaratory decree should not be granted where the grant of the decree would be a useless affair. The grant of a declaratory decree is a matter within the discretion of the Court and the Court is not bound to make a declaratory decree simply because it is within its competence to do so.
6. The appeal is allowed, the decree of the Court below is set aside and the decree of the first Court is restored. The appellant will have his costs throughout. The costs in this Court will include Counsels' fees on the higher scale.