1. These appeals arise out of suits for rent based upon certain kabulyats. The kabulyats in three of the cases were for the term of one year and the kabulyats in the remaining two cases were for three years each. Certain rent was settled in each case but a portion was deducted as hajat kept in suspense and the balance was stated to be the rent payable for the term. It was stipulated, however, in the kabulyats that on the expiry of the term the tenant would take a fresh settlement and if he continued in occupation without taking any fresh settlement, the amount of hajat would not be allowed. The plaintiff in these suits has claimed rent at the full rate. The Court of first instance gave a decree for rent at the full rate, but on appeal the learned District Judge held that plaintiff was entitled to recover rent only at the reduced rate. The plaintiff has appealed to this Court.
2. Now the defendant is not an occupancy raiyat. The case of Srimati Mohamaya Kar v. Kishore Chang 21 Ind. Cas. 948; 18 C.L.J. 50(sic); 18 C.W.N. 738, upon which reliance was placed on behalf of the respondent, related to an agreement made by an occupancy raiyat and the agreement contravened the provisions of Section 29 of the Bengal Tenancy Act, and, therefore, cannot govern the present cases. The agreement contained in the kabulyats in these cases as to payment at the full rate after the expiry of the term if the tenant chose to occupy the land, does not contravene the provisions of the Act relating to non-occupancy raiyats, and is not invalid.
3. The learned District Judge, however, has held that even after the expiry of the term the plaintiff did not realise rent at the full rate, but realised rent at the reduced rate. Although there is evidence to show that rent was not realised at the full rate, there is no evidence that rent was realized at the reduced rate, and the finding of the Court below on the latter point, therefore, is not based upon any evidence. It does not appear at what rate rent was actually realised since the expiry of the term. Assuming, however, that rent was realised at the reduced rate for a few years before suit, we do not think that that fact by itself is sufficient to deprive the landlord of his right to claim rent at the rate stipulated in the kabulyats. The contract as to the rent payable after the expiry of the term is contained in the kabuliyats. The mere fact that the rent for some years has been received at a reduced rate does not bind the lessor to accept rent at that rate in future, because that is consistent with the reduction being a mere temporary abatement and is an indulgence on the part of the lessor. See Durga Prosad Singh v. Rajendra Narain Bagchi 4 Ind. Cas. 713; 10 C.L.J. 570; 37 C. 293, Durga Prasad Singh v. Rajendra Narayan Singh 21 Ind. Cas. 750; 18 C.W.N. 66; 41 C. 493; (1914) M.W.N. 1; 40 I.A. 223; 15 M.L.T. 68; 19 C.L.J. 95; 26 M.L.J. 25; 16 Bom. L.R. 42 and Baijnath Prosad Sahu v. Raghunath Rai 14 Ind. Cas. 817 16 C.W.N. 496. The learned Judge has practically held that the landlord by accepting rent at the reduced rate after the expiry of the term of the leases has varied the rent by putting an end to the agreement to pay rent at the full rate. No such case, however, was made by the defendant, and in four of the cases in which the leases were registered evidence of any subsequent agreement or evidence of conduct is inadmissible.
4. We are accordingly of opinion that the plaintiff accepting rent at the reduced rate is not precluded from claiming rent at the rate agreed upon in the kabulyats.
5. The defendant, however, pleaded in his written statement that the stipulation in the kabulyats that the amount of hajat would not be allowed on the expiry of the term of the lease was inserted as a mere matter of form, in other words, that it was never intended to be acted upon. We think that this question should be gone into. In the case of Beni Madhub Gorani v. Lalmoti Dassi 6 C.W.N. 242, this Court held that evidence that since the execution of the kabulyat the tenant paid rent at a lower rate than that stated in the kabulyat, is admissible to show that the intention of the parties was that the kabulyat from the very first was not intended to be acted upon or that there had been a waiver of the strict term of the lease. We agree with the above view and we think the lower Appellate Court should come to a decision whether it was the intention of the parties from the beginning that the kabulyats were not to be acted upon, or in the alternative whether there was a waiver of the terms. The decrees of the Court below are accordingly set aside and the cases remanded to that Court for disposal after a decision of the question indicated above. It will be open to both parties to adduce further evidence on the point. Costs to abide the result.