Richard Garth, C.J.
1. We think that this appeal should he allowed. The judgments of the Subordinate Judge, and that of Mr. Justice White, appear to us to he directly opposed to the ruling of the Full Bench in the case of Golam Mohamad v. A smut All Khan 10 W.R. F.B. 14.
2. The grounds upon which that case proceeded, as we understand them, are these; that in order to entitle a landlord to sue a tenant for a kabuliat at a certain rout, he should either have tendered to the tenant a pottah at the rate of rent mentioned in the kabuliat, or ho should be willing to grant a pottah at that rate; and when be brings a suit against his tenant for a kabuliat at a certain rent, it must be presumed that ho is ready to grant a pottah at that rate. That presumption would enable him to succeed in his suit, if the Court considers that the rent which he claims is the correct amount. But if the Court thinks that lie is not entitled to a kabuliat at the rate claimed, but at a lower rate, then it is plain that no presumption can be made in favour of his having been willing to grant a pottah at that lower rate. On the contrary, the fact that ho has attempted by legal proceedings to enforce the payment of the higher rent, raises a presumption that he would not have been content, when he brought his suit, to accept a kabuliat at the lower rate.
3. He is, therefore, not entitled to a decree for a kabuliat at the smaller rate, because the Court cannot presume that ho would have granted a pottah at that rate.
4. This is the ground upon which, as we understand it, the judgment of the Full Bench proceeds, and it had since certainly been acted upon in that sense in many other instances.
3. It appears to us, that the case of Gopeenath Jannah v. Jeteo Mollak 18 W.R. 272 decided by Mr. Justice Kemp and Mr. Justice glover, is not in accordance with the ride laid down by the Full Bench, and that we are, therefore, justified in dissenting from it.
4. It has been contended before us that it is the same thing whether the landlord sues for enhanced rent simpliciter, or sues for a kabuliat at an enhanced rate. But that is not so. When a landlord, after notice, sues for enhanced rent, the Court may give him a lower rate of enhanced rent than that which he claims, because in such a suit it is not necessary that the landlord's willingness to grant a pottali at the rent demanded should be proved or presumed, and when in that suit the proper amount of rent has boon ascertained and fixed between the parties, the landlord may safely demand from the tenant a kabuliat at that rate, and sue him for it.
5. This distinction between suits for enhanced rent and suits for a kabuliat at enhanced rent, appears to us to be clearly pointed out by the Chief Justice in the Full Bench case.
6. For these reasons we consider that the Subordinate Judge was wrong; and we consider that, in a suit of this nature, no distinction can be drawn between cases in which a kabuliat is demanded after notice and cases in which no such notice is given. The judgments of both the Appellate Courts will be reversed, and the judgment of the First Court restored, with costs in each Court.