1. This is an appeal on behalf of the plaintiff in a suit for recovery of arrears of rent. The case for the plaintiff is that the tenancy was created by a kabuliyat, executed on the 4th February 1887, for a term of five years, that after the expiry of the term, the tenant has held over and that the plaintiff is entitled to realise rent at the rate of Rs. 98-2 as for the years 1906 and 1907. The defendant resists the claim mainly on the ground that the rent payable is Rs. 37-8 a year.
2. The Court of first instance found that the tenancy had been created under the kabuliyat, that the defendant entered into occupation on the strength thereof, that he held possession of the land for the full term of five years upon payment of rent at the rate mentioned in the kabuliyat and since the expiry of the term, he has held over. In this view, the Court of first instance made a decree in favour of the plaintiff at the rate claimed : upon appeal, the Subordinate Judge has reversed that decision. He has held, on the authority of the decision of this Court in the case of Mukunda Chandara Sarma v Arfan Ali 2 C.W.N. 47, that the mere fact that the plaintiff obtained a kabuliyat from the defendant does not entitle him to claim rent at the rate mentioned therein after the expiration of the term of the tenancy. The Subordinate Judge has, at the same time, held that the defendant has failed to prove that he has been paying rent at the rate alleged in defence : yet the Judge has modified the decree of the Court of first instance and allowed the plaintiff rent at the rate admitted by the tenant.
3. On behalf of the plaintiff, it has been contended in the present appeal that the view taken by the Subordinate Judge is erroneous and that the plaintiff was entitled to get rent at the rate mentioned in the kabuliyat when the defendant failed to prove that after the expiry of the term, the rate of rent had been altered by agreement of parties In our opinion, there is no room for controversy that the view taken by the Subordinate Judge cannot be supported.
4. It was ruled by Sir Barnes Peacock, C.J. in the case of Sheikh Enayutoollah v. Sheik Elaheebuksh (1861) W.R. Act X Ruling Section 42, that when a tenant holds on after the expiration of a lease, he does so on the terms of the lease and at the same rate and on the same stipulations as are mentioned in the lease, unless the parties come to a fresh settlement. The same view was taken by Sir Richard Couch C.J., in the case Sayaji bin Habaji y. Umaji bin Sadoji 8 B.H.C.R.A.C.J. 87, and was adopted by this Court as well-founded on principle in the case of Administrator-General of Bengal v. Asraf Ali 28 C. 227 see also Kishore Lal v. Administrator-General 2 C.W.N. 303; Jumaud Alt v. Chutturdharee 16 W.R. 185; Sheo Sahoy v. Bechun Singh 22 W.R. 31; Tara Chunder v. Ameer 22 W.R. 394; Sreemutty Altab Bibi v. Jugul 25 W.R. 234; Maharani Beniprosad Koeri v. Raj Kumar 6 C.W.N. 589. In the case before us, the tenant admits that the land of the tenancy is still in his occupation, that he first entered upon the land under the kabuliyat executed by him and that he was in possession for five years according to the terms of the contract between the parties. Consequently, the inference follows that after the expiry of the term of the lease, the defendant has heldover according to the terms of original contract. Until he establishes by evidence that the terms of the contract have been varied by mutual agreement bat ween the parties, he must be held liable to pay rent at the original rate. The Subordinate Judge has found that the defendant has failed to prove any new contract. In view of the decision of the Court in the cases of Lakhalullah v. Bishwambhar Roy 12 C.L.J. 646. 6 Ind. Cas. 577 and Beni Madhub Gorani v. Lalmoti Dassi, 6 C.W.N. 242 there may, perhaps, be room for controversy whether such variation, if any, could have been established by oral evidence. It is not necessary, however, to express any opinion upon this point because the defendant has not proved by evidence that the rent has been varied. It was also laid down by this Court, in the case of Durga Prasad Singh v. Rajendra Narain Bagchi 10 C.L.J. 570 : 37 C. 293 : 4 Ind. Cas. 713 that 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. Consequently, even if the defendant established that for a year or two, the landlord had accepted from him lower rent than that mentioned in the kabuliyat, it would not necessarily follow that the terms of the original contract had been permanently varied. The view we take is not really opposed to the decision in Mukund Chandra Sarma v. Arfan Ali 2 C.W.N. 47. In this case, the defendant denied that he held the land of the tenancy under the contract set up by the plaintiff; the plaintiff failed to prove that the defendant did so hold the land. The defendant, on the other hand, proved that he had never paid rent at the contract rate but had paid at a much lower rate. Under these circumstances, the learned Judges held that the landlord could not successfully claim to recover rent at the alleged contract rate.
5. That case, therefore, does not lay down any inflexible rule of law and the case before us is of an entirely different description.
6. The result is that this appeal is allowed, the decree of the Subordinate Judge reversed and that of the Court of first instance restored with cost throughout.