1. This appeal arises out of a suit foe arrears of rent under a kabuliat. The plots in dispute are apparently ex proprietary land though there is some dispute about this. The Court below has dismissed the suit on the ground that the rent was not fixed in accordance with the provisions of Section 36 of the Land Revenue Act and Section 10 of the Tenancy Act. Two points have been urged in appeal,--
(1) That the lease included the zemindari share as well as sir plots and, therefore, rent should have been decreed in respect of the former.
(2) That the Court below has not found that the rent reserved under the lease is in excess of the rate payable by an ex-proprietary tenant and that the suit should not have been decided without a finding on this point.
2. On the first point there is a definite finding of the Court below that the plaintiffs leased to the defendants the whole of the zemindari including sir at a rent of upwards of Rs. 90 per annum.
3. On the latter point the Court below held that it was immaterial whether the rent agreed upon was in excess of the statutory rate or not. The learned Judge has relied on a dictum of a Single Judge in a case not officially reported. Jahangira v. Karrar Husain 44 Ind. Cas. 513 : 16 A.L.J. 212, that such an agreement could not be the foundation of a suit for rent. The point did not really arise, as in that case the rent had been fixed under Section 36 of the Land Revenue Act. On the-other hand, all that has been laid down on the subject in the Reported case of Pirag v. Sital Parsad 22 Ind. Cas. 965 : 36 A. 155 : 12 A.L.J. 136, is that an agreement to pay rent in excess of the statutory rate is void. The same view seems to have been held in a subsequent Letters Patent Appeal, Munsa Ram v. Ganga Ram 55 Ind. Cas. 889 : 18 A.L.J. 282 : 42 A. 334 : 2 U.P.L.R(A) 71, where it was said that if the rent agreed upon was not in excess of the statutory rate the zemindar ought to have pleaded this as an answer to the defence. The duty of fixing the rent under Section 36 of the Land Revenue Act is laid, in the first instance, not on the parties but on the mutation Court, though a right is reserved to the parties to apply subsequently if the Revenue Court omits to make an order. I can find nothing in this to present the parties agreeing upon a rent which is not above the legal maximum nor do I see any reason why such tent, if agreed upon by the parties, should not be recoverable in the Courts. I accordingly remit the following issue to the Court below under Order XLI, Rule 25:
4. Was the rent agreed on in the kabuliat in suit in respect of the sir plots in excess of the statutory rate or not?
5. The kabuliat is not on the record; it is said that at the time of filing the suit it had been filed in some other case. The Court below will, therefore, allow the kabuliat to be produced and, in case of its not being admitted, to be proved. In other respects the issue will be decided on the evidence already on the record, as the kabuliat is not on the record there is nothing to show whether rent in respect of the sir plots was separately specified. If there is no specification but a combined rent was fixed for the zeminiari and the ex-proprietary tenancy, it may be impossible for the Court below to record a fiding on the issue, in which case it should report to this effect. The finding should be submitted within six weeks Ten days from the date of the finding are allowed for objections. Costs will abide the result.