R.F. Rampini C.J. and Ryves, J.
1. The two second appeals, No. 2388 and 2466, of 1906 are appeals against a decision of the District Judge of Murshidabad in suits for arrears of rent. The defendant is sued on the basis of two kabuliats executed by him in favour of the plaintiff on the 18th October 1894, which he now repudiates on the grounds (i) that they were obtained from him by oppression and threats, and(ii) that they are illegal, being contrary to the provisions of Section 29 of the Bengal Tenancy Act.
2. Both the lower Courts have found that the kabuliats were not extorted from the defendant by oppression or threats, but were executed voluntarily by him. But the lower Appellate Court has held that the kabuliats are void, being contrary to the provisions of Section 29 of Act VIII of 1885. It has been further held that the fact that the defendant has paid rent at the rate mentioned in the kabuliats for some time is immaterial, and that a decree which the plaintiff obtained against the defendant for the rent, which is the subject of dispute in the suit to which appeal No. 2466 relates, does not make the question of 'the rate of rent payable res judicata.
3. The plaintiff now appeals. On his behalf it has been urged (i) that the kabuliats are legal, being executed in settlement of disputes which arose between the landlord and the defendant both as to the amount of rent payable and the area of the defendant's holdings; (ii) that the enhancement agreed to in the kabuliats is only the price of the privilege of transferring holdings without the consent of the landlord conferred by the leases; (iii) that the leases are not void, but voidable, and that as the defendant has paid the rents stipulated for in them for many years without objection, he cannot now question them; (iv) that the leases are at least good to the extent of the enhancement allowed by Section 29 of the Act; and (v) that the onus of proving that the plaintiff is entitled to additional rent for additional land has been wrongly thrown on the plaintiff. In appeal No. 2464, there is a further plea that the decree obtained by the plaintiff against the defendant on the 16th January 1905 has the effect of res judicata.
4. It appears to us that the appeals must fail on the findings of fact arrived at by the District Judge. He has found that the rent payable by the defendant prior to the execution of the kabuliats was Rs. 32 and that it now amounts to Us. 63, and that consequently the kabuliats contravene the provisions of Section 29 of the Act. He has further found that the defendant is now not in possession of more land than he originally held, so that the enhancement of rent cannot be justified under Section 52, and finally, he has held that there was no dispute between the plaintiff and the defendant as to the rent and area of the defendant's holdings in settlement of which the kabuliats were executed.
5. It may be here explained that the provisions of Section 29 of the Tenancy Act have always been obnoxious to the landlords of Bengal. Soon after the passing of Act VIII of 1885, they endeavoured to evade them by entering into compromises with their tenants. The ruling of this Court in the case of Sheo Sahoy Panday v. Ram Rachia Roy (1891) I.L.R. 18 Calc. 333 gave some countenance to this practice to which recent legislation in Act I of 1907 (B.C.) is intended to put an end. But, however, all this may be, the application of the ruling in Sheo Sahoy Panday v. Ram Rachia Roy (1891) I.L. R- 18 Calc. 333 followed in Nath Singh v. Damri Singh (1900) I.L.R. 28 Calc. 90 to these cases is negatived by the finding of fact of the District Judge that there was no dispute between the plaintiff and the defendant, which the execution of the kabuliats now sued on, was intended to settle. That being so, they must be illegal and cannot be given effect to.
6. The plea taken by the learned pleader for the appellant that the illegal enhancement of rent agreed to in the kabuliats was but the price of the privilege of transferability of the holdings conveyed by the leases cannot prevail, because (i) this plea was never raised in either of the lower Courts, (ii) it is not shown that the holdings were non-transferable before the execution of the kabuliats, and (iii) it is not shown that there was any dispute between the parties as to the transfer-ability of the holdings in settlement of which the kabuliats were executed.
7. It has been clearly held that the leases executed in contravention of the provisions of Section 29 of the Act are void, not voidable: Probat Chandra Gangapadhya v. Chirag Ali (1906) I.L.R. 33 Calc. 607. Rent has been paid under them in one case for about 11 years, but this does not make legal and operative an illegal and void contract.
8. It has also been held that a contract which is illegal and void as being contrary to the provisions of Section 29 of the Act is not legal and operative to the extent of the enhancement allowed by the rent law: Kristodhone Ghose v. Brojo Gobindo Roy (1897) I.L.R. 24 Calc 895.
9. The onus of proving that the area of the land has not increased, has not, in our opinion, been improperly thrown on the plaintiff. We agree with the lower Court that when it is shown what the defendant's previous rent was, it is for the plaintiff to justify the enhancement of rent now claimed, which is obviously in excess of the enhancement allowed by the Act.
10. We have carefully examined the ex parte decree relied, on by the plaintiff in appeal No. 2466. It is merely a decree for a certain sum of money claimed for a certain period. It decides no question of the rate of rent payable by the defendant. It, therefore, has not the effect of res judicata.
11. We accordingly dismiss these appeals with costs.