1. This appeal arises out of a suit for recovery of rent for the year 1308 B.S. It appears, upon the judgments of both the Courts below, that in the year 1281 B.S. corresponding to 1874 the defendant executed a qabuliat in favour of the plaintiff in which the jama of the holding in his occupation was stated to be Rs. 25-9-9 but that, on account of the straitened circumstances of the defendant, the landlord agreed to hold in abeyance (hajut) a portion of the jama, namely, Rs. 11-15-6, and to receive Rs. 13-10-3. Between the years 1281 and 1306, the defendant paid rent at the rate of Rs. 13-10-3. In the year 1307, he executed another qabuliat in favour of the plaintiff in which the jama of his holding was again mentioned to be Rs. 25-9-9, and it was stated that, his condition in life having improved be agreed to pay out of the amount that was being held in abeyance Rs. 3-6-6 in addition to Rs. 13-10-3. Upon the findings arrived at by both the Courts below the defendant actually paid for the year 1307 the jama so agreed to be paid, namely, Rs. 17-0-9. And the plaintiff in this case seeks to recover rent for the year 1308 at the rate of Rs. 17-0-9.
2. The Court of first instance held that the agreement executed by the defendant in the year 1307 to pay an additional amount of Rs. 3-6-6 was in violation of the provisions of Section 29 of the Bengal Tenancy Act, and that, therefore, the plaintiff was not entitled to recover the same.
3. The District Judge on appeal, has, however, come to a different conclusion. He has held that the jama of the holding must be taken upon the qabuliat of the year 1281, and that of the year 1307 to be Rs. 25-9-9, and that Rs. 11-15-6 having been only kept in abeyance (hajut) for the time being, it was quite lawful for the defendant to agree in the year 1307, to pay, out of the amount so kept in abeyance, Rs. 3-6-6 and that this was not in violation of the provisions of Section 29 of the Bengal Tenancy Act. He has, accordingly, given the plaintiff a decree at the rate claimed by him. Against this judgment the defendant has appealed.
4. The learned Vakil for the defendant appellant has urged the same point before me that was taken by the Munsif in answer to the plaintiff's claim for the additional amount of Rs. 3-6-6. I am, however, of opinion that the view expressed by the learned Judge of the Court below is right. It will be observed that the qabuliat of the year 1281 was executed long before the Bengal Tenancy Act was passed, and we should take it as stated in that qabuliat, that the jama of the holding was lawfully agreed to be Rs. 25-9-9, and if the parties agreed that a portion of the jama, should be held in abeyance for a time, it would not be unlawful for them to enter into a subsequent agreement that either the whole of the amount that was kept in abeyance or a portion thereof should be paid by the one to the other. In this view of the matter, I am of opinion that the agreement was not in violation of the provisions of Section 29 of the Bengal Tenancy Act for this was no enhancement, of the rent of the holding within the meaning of the section. I may here refer to the provisions of Section 27 of the Act, which says that the rent for the time being payable by an occupancy raiyat shall be presumed to be fair and equitable until the contrary is proved. Upon the findings of the Courts below the rent for the time being payable by the defendant is Rs. 17-0-9, and prima facie the plaintiff is entitled to claim that rent unless it be that in law he cannot recover it. If the terms of Section 29 of the Act as I understand them, did not prohibit the parties to enter into an agreement such as it was entered into in the year 1307, there is no reason why the plaintiff should not be entitled to recover the rent payable on account of the holding which I take to be Rs. 17-0-9.
5. I should here state that the appellant did not take the trouble of bringing up before this Court the qabulait of the year 1881; and I have, therefore, taken, the facts as I found them upon the judgments of the Courts below, and upon the terms of the qabuliat of the year 1307.
6. The result is that this appeal is dismissed with costs.
Nos. 2671 to 2674:
7. It is conceded on both sides that the judgment that I have just delivered will equally apply to these appeals. They are accordingly dismissed with costs.