1. These two appeals arise out of two suits for rent in respect of four holdings, or, to be more correct to respect of three holdings, the last two holdings being amalgamated into one The four holdings were originally held by the defendants on lower jamas. On the 21st February 1916 the defendants executed a kabuliyat, in favour of the land-lords agreeing to pay enhanced rent for the jamas within the statutory limit, namely, not more than two annas in the rupee.
2. In respects of the first jama, which was for a plot of land measuring 4 bighas, 12 cottas, 8 chattacks, it is staged in the kabuliyat that the jama was increased by two annas in the rupee to Rs. 10-2-6. In schedule (kha) attached to the kabuliyat another jama is mentioned, which is described as one bigha of land ' for which an agreed quantity of paddy was to be delivered but which mode of payment was converted into the money rant of Rs. 5-3-9, and this sum is amalgamated with the enhanced annual jana, Rs. 10-2-6, The rent for the aggregate lands in the said Bhogpur mauza as per schedules (ka) and (kha) is fixed at Rs. 15-6-7 only.' With regard to the other jamas the enhancement agreed upon by the parties is not in contravention of the provisions of Section 29, Bengal Tenancy Act.
3. The suit out of which S. A. No. 814 of 1921, arises is in respect of the last two jamas mentioned in schedule (kha) of the kabuliyat consolidated into one jama of Rs. 33-9-9. This suit has been decreed by both the Courts below. It is argued on behalf of the appellant before us, that the kabuliyat being one and indivisible the claim cannot be enforced even in respect of the last two jamas because one of the jamas, namely, the jama mentioned in schedule (kha) is fictitious and was added solely for the purpose of avoiding the limitation mentioned in Section 29, Ben-gal Tenancy Act, and hence the whole contract must be considered to be void. The learned vakil for the appellant has drawn our attention to some passages in ft ha kabuliyat. Towards the end of the kabuliyat it is said that the aggregate jama recoverable under the kabuliyat is Rs. 52-4-7. He, therefore, argues that all the four jamas must be taken to be amalgamated and formed into one jama of Rs. 52 and odd and that the original total of the rent payable in respect of all the jamas being Rs. 41 and odd there has been an increase of more than two annas in the rupee and, therefore, the plaintiffs two not entitled to maintain the suit oven for a portion of the jama secured by the kabuliyat. We are unable to agree with the construction that is attempted to be put upon the kabuliyat. Reading it as a whole, it appears to us that the jama mentioned in schedule (kha) of Rs. 5 was amalgamated only with the first jama of Rs. 10 and odd mentioned in schedule (ka). The other two jamas were kept separate though they are treated under the same document. The Courts below have decreed the plaintiff's suit in respect of the last jama of Rs. 33 and odd holding that the contract in respect of these jamas was separate from that of any other jama. 'We think that the view taken by the Court below is correct and this appeal is dismissed with costs in all the Courts.
4. Then with regard to S. A. No. 846 of 1921: It arises from the suit in reject of the jama as mentioned in schedule (ka), (kha) and (ka). As we have observed the original jama of schedule (ka) land was Rs. 9-5-6. It was raised by two annas in the rupee to Rs 10-2-6. To this was added the jama mentioned in schedule (kha) and the total was taken to be Rs 15-6 7. To this is added the claim for rent for plot (ka) the original rent of which Rs. 2-14-6 was increased by two annas in the rupee to Rs. 3-4-3. , The main objection taken by the defendants to the suit was that the land mentioned in schedule (kha) had no real existence and that it was surreptitiously included in the kabuliyat in order to allow the landlord to realize enhanced rent from the tenants in excess of the limit put by Section 29, Bengal Tenancy Act. The first Court found that the land of schedule (kha) really existed and was held by the defendants. In that view id decreed the plaintiff's suit. On appeal, the learned District Judge disagreed with the Munsif on the finding as to the existence of the land of schedule (kha) and held that it never existed and was falsely inclined in the kabuliyat. The learned .Judge then goes on to consider the effect of this fraudulent recital in the kabuliyat and held that in the absence of any undue influence the contract entered into by the defendant with their eyes open must be held to be a good one and binding on them they being joint authors of the alleged fraudulent act. In this view he agreed with the first Court in decreeing the plaintiff's suit. It is argued on behalf of the appellant in this appeal that the jama mentioned in schedule (kha) being fictitious and added for the purpose of increasing the rent payable by the defendants to the plaintiffs by more than two annas in the rupee rendered the entire contract void and the suit ought to have been dismissed. We are of opinion that) this contention must succeed in part. As we have held the kabuliyat does not create one consolidated jama in respect of all the holdings but it purports to amalgamate the first two jamas mentioned in schedules (ka) and (kha) and to treat the other three jamas separately. In this view it must be held that the jama mentioned in schedule (kha) having bean found to be fictitious and non-existent, the jama schedule (ka), which was Rs. 9 was fraudulently increased to Rs. 15 and odd, that is more than two annas in the rupee. This contract, is therefore, unsustainable in law and the suit so far as it relates to the claim in respect of rent of the holding's mentioned in schedules (ka) and (kha), must fail.
5. It is, however, argued by the learned vakil appearing for the respondents in the line adopted by the lower appellate Court that the defendants are estopped from questioning the Validity of the contract. It is not necessary to say, that here cannot be any estoppel, against a statute nor can the parties contract themselves out of any statute. The words of the section are imperative and it provides, that the rent; must not be enhanced so as to exceed by more than two annas in the rupee, the rent previously payable by the raiyat. This prohibitory law is not qualified by any provision calculated to save a contract or agreement between the parties.
6. It is next argued by the respondent that the Judge was wrong in placing the onus upon the plaintiff of proving, that the jama of schedule (kha) really did not exist. The learned District Judge has considered the whole evidence, has disbelieved the plaintiff's evidence and has come to the conclusion that it was not proved to his satisfaction that the holding even existed. The question of onus ordinarily becomes of very little importance, when the whole evidence is considered especially by the appellate Court.
7. The view we take leads us to the following conclusion. The suit so far as it relates to the jama bearing a rental of Rs. 15-8-7 must be dismissed and in so far as it relates to the jama of, Rs. 3-4-3 should be decreed. This appeal is accordingly allowed in part. We make no order as to costs in any of the Courts. The parties will bear their own costs throughout.
8. I agree.