Richard Harington and Asutosh Mookerjee, JJ.
1. This is an appeal on behalf of the plaintiffs in an action for rent. The sole point in controversy between the parties is, whether rent is payable at the rate of Rs. 6 a year as alleged by the plaintiffs, or Rs. 5 a year as alleged by the defendant.
2. The defendant purchased the holding in 1895 from the original tenant. In 1906, in the course of another litigation between the present parties, which did not include the property now in dispute, a petition of compromise was filed. By that compromise the plaintiffs undertook to recognise the defendant as their tenant, although in their view he had purchased a non-transferable occupancy holding. The plaintiffs further gave up their claim to payment ot selami for the recognition; but it was mutually agreed that in addition to Rs. 5, which was the rent payable by the original tenant, the defendant should pay an additional sum of Re. 1 a year. The plaintiffs now seek to recover rent from the defendant on this footing. His answer is threefold: first, that the petition of compromise is not admissible in evidence, because it was not duly registered; secondly, that, if it is admissible in evidence, the additional sum agreed to be paid by him is in the nature of enhanced rent in contravention of the provisions of Section 29 of the Bengal Tenancy Act; and, thirdly, that the agreement is, in any view, for payment of an abwab. In our opinion, none of these contentions can possibly prevail.
3. In so far as the first point is concerned, it may be conceded that, as laid down in the cases of Birbhadra Rath v. Kalpataru Panda (1905) 1 C.L.J. 388 and Gurdeo Singh v. Chandrikah Singh (1907) I.L.R. 36 Calc. 193 a consent decree, in so far as it relates to properties which are not the subject-matter of the suit in which the decree is made, is not operative to affect such properties. Consequently the plaintiffs can rely only upon the petition of compromise. From this point of view it has been argued that, treated as a lease, the petition of compromise was compulsorily registrable under Clause (d) of Section 17 of the Indian Registration Act. But this objection must be overruled on the ground that the petition is admissible as indicating the existence of an oral agreement to grant the lease. That oral agreement plainly is still specifically enforceable. Consequently, the position of the parties is the same as if the proper document had been executed and registered. In support of this view, we need only refer to the cases of Bibi Jawahir Kumari v. Chatterput Singh (1905) 2 C.L.J. 343 and Singheeram Poddar v. Bhagbat Chander Nundi (1910) 11 C.L.J. 543 where the principle laid down by Sir George Jessel in the case of Walsh v. Lonsdale (1882) 21 Ch. D. 9 was applied. Consequently, we must proceed on the assumption that the defendant was recognised as a tenant, and that he undertook to pay Rs. 6 a year to the plaintiffs in consideration of the land claimed by him by purchase.
4. The second question which requires consideration is, whether this agreement was in contravention of the provisions of Section 29 of the Bengal Tenancy Act. The learned vakil for the respondent has contended that this was an agreement by which his money-rent as an occupancy raiyat was enhanced by contract to the extent of more than two annas in the rupee. This argument is obviously fallacious. The answer is that the land in question was nontransferable, and therefore the defendant was not an occupancy raiyat. Consequently, there was no rent payable by him which was enhanced.
5. The third question is whether the sum agreed to be paid is an abwab. This argument is ingenious, but clearly unsound. The sum was agreed to be paid in consideration of the land occupied by the defendant, and also in view of the remission of the selami which would otherwise have been payable. It cannot consequently be deemed in any sense an illegal cess.
6. The result is that this appeal is allowed, a ad the decree of the Court below varied. A decree will be made in favour of the plaintiffs at the rate of Rs. 6. The appellants are entitled to their costs both here and in the Court of Appeal below.