1. This is an appeal on behalf of the plaintiff in a suit for rent, The ease for the plaintiff is that the defendant on the 13th August 1889 executed a kabuliyat in his favour, in which he admitted that he held 7 bighas 15 cottas of land measured with a rashi of 18 inches a cubit at the annual rental of Rs. 12 3 0, He further agreed that, if any excess land was found in his possession, he would pay rent thereof in addition to the aforesaid rental without any objection and neither he nor his heirs would raise any objection thereto. The plaintiff now seeks to recover rent at the rate mentioned in the kabuliyat and also additional rent for excess land, which he alleges is in the occupation of the tenant. The tenant resists the claim 6n two grounds, namely, first, that the kabuliyat was obtained from him by coercion and was not binding on him; and secondly, that there was no excess land in his possession for which he was liable to pay additional rent.
2. The Courts below have dismissed the suit en the authority of the decision in the oars of Rajkumar Pratap Sahay v. Ram Lal Singh 5 C. L. J. 538, The Subordinate Judge has held that inspite of this contract between the parties it was necessary for the plaintiff to prove the inception of the tenancy and to establish to the satisfaction of the Court the quantity of land and the rent payable by the defendant at that time. He has further held that as the plaintiff has failed to discharge the onus which lay upon him his suit must fail in so far as the claim relates to excess land. In our opinion this View cannot possibly, be supported. The Subordinate Judge has misunderstood the decision of this Court on which he has placed reliance. In that case there was no written contract between the parties, the terms of the tenancy were not known with certainty, and the origin of the tenancy had not been established. There was an entry in the rent receipts to the effect that the rent was paid in respect of an area mentioned. Under these circumstances, the Court held that the plaintiff had failed to prove that there was really any excess land in the possession of the defendant for which he was liable to pay rent. In the case before us, unless the allegation of the defendant as to the circumstances under which the kabuliyat was o--moA from him are established, he is bound by its terms and the kabuliyat shows coioiasivaly' that he held 7 bighas and 15 cotths of land measured according to a rashi of 18 inches to the cubit at an annual rental of Rs. 12 3.0. If, upon measurement according to the same standard, it is now established that he holds more than 7 bighas and 15 cottahs of land, he is obviously bound to pay additional rent for the excess area.
3. The result, therefore, is that this appeal is allowed, the decree of the Subordinate Judge set aside and the Case, remanded to him in order that he may raise an issue as to the circumstances under which the kabuliyat Was obtained by the plaintiff from the defendant. As the question does not appear to have been properly appreciated at the original trial, the parties will be at liberty, to adduce additional evidence, such evidence to be taken by the Subordinate Judge himself or under his direction by the Court of first instance. If the Subordinate Judge finds that the kabuliyat is binding upon the defendant, additional evidence will have to be taken to determine the area now in the occupation of the defendant. The costs of this appeal will abide the result.
4. It is conceded that this judgment will govern the other case (Second Appeal No. 1068 of 1909) which will also be remanded, and the costs will abide the result.