1. This appeal is on behalf of the plaintiff and arises out of a suit for recovery of produce rent for the years 1333-1335 B.S. The plaintiff claimed at the rate of 5 maps of paddy and 8 pans of straw per year. It appears that the lands in suit belonged to two persons Gosai Das and Hriday Nath Das in equal shares. In execution of a money decree against them the Ratis purchased their interest but this purchase was after Hriday Nath had executed a mortgage in respect of his half share in favour of the plaintiff. The plaintiff sued upon his mortgage, got a decree and in execution of the same purchased the mortgagor's shares. He took possession through Court on 5th October 1923. The case has proceeded on the footing that the plaintiff has got 8 annas share to the lands in suit, the other 8 annas being with the Ratis. It appears that some persons called the Lohars were in possession at least from the year 1910 of the lands in suit as tenants under the Ratis. In the year 1926, the plaintiff instituted a suit for rent being Rent Suit No. 72 of 1926 against the Lohars for his half share of the rent for the year 1330 B.S. This suit was instituted in 1333 B.S. It appears that the plaintiff instituted the said suit on the footing that the Lohars were his tenants in the year 1330 but from the year 1331 he, the plaintiff, had brought on another tenant on the land whose name is Narayan. In this suit a compromise petition was filed between the plaintiff and the Lohars. The said petition is Ex. D in this case. The parties agreed that for the year 1330 the Lohars were to pay to the plaintiff the value of 5 1/2 maps of paddy and 2 pans of straw, the price to be determined by the Court. There is a stipulation that from the year 1333 the Lohars were to pay to the plaintiff a reduced rent at the rate of 4 maps of paddy and 8 pans of straw.
2. The compromise petition was filed on 19th August 1928. Two days later namely on 21st August 1926, the Court determined the price of paddy, and passed a decree in favour of the plaintiff. Six days before the petition of compromise was put in, that is to say on 13th August 1926, defendant 1 executed a Kabuliat in favour of the plaintiff by which he agreed to pay to the plaintiff the rent claimed in the suit. That Kabuliat was accepted and the case of defendant 1 that he was prevailed upon to execute that Kabuliat through misrepresentation has failed in the lower Courts. It is on the basis of this Kabuliat that the plaintiff has instituted the suit and claims rent against defendant 1. There is a stipulation in the Kabuliat which would imply that at the date thereof the plaintiff was not in khas possession but the lands were in possession of Narayan. In the Kabuliat there is a statement that the plaintiff had realised the Bhag rent from Narayan for the years 1331-1332, the defendant was to realise from Narayan Bhag rent for the year 1333 and thereafter defendant 1 took upon himself to eject Narayan from the land and cultivate the land in khas. It appears that Narayan referred to this Kabuliat later on, set up the case that he was not the Bhag chasi of the plaintiff but of the Lohars with the result that defendant 1 had to institute a suit against the Lohars for recovery of possession. In that suit also he failed. That suit was filed on the basis of the settlement evidenced by the Kabuliat Ex. 1. The suit was dismissed on a preliminary point.
3. There was an appeal to the High Court by which the decree of the lower Court was set aside and the case remanded to the lower Court. During the pendency of this suit in the lower Court after remand the interest of the Lohars was purchased by defendant 2 who is the wife of defendant 1. The case of defendant 1 is that it was under the advice of the plaintiff that this conveyance was made. Defendant 1 has resisted the claim for rent against him on two grounds. Firstly, he says that at the date of Ex. 1, the plaintiff had no right to settle the lands with him, he having recognized the pre-existing tenancy in favour of the Lohars. Secondly, he says that inasmuch as the plaintiff did not put him in possession, there was liability to pay. Defendant 2 filed a written statement, admitted the tenancy under the plaintiff in her right as a purchaser from the Lohars and admitted her liability to pay rent at the rate of 4 maps of paddy and 8 pans of straw a year. The learned Subordinate Judge has dismissed the plaintiff's suit in its entirety. He has held that the Solenama Ex. D clearly recognized a preexisting tenancy in the Lohars. At the time of the Kabuliat Ex. 1 the plaintiff had already the Lohars as tenants. It also found that defendant 1 could not take possession and the possession which defendant 2 took after her purchase from the Lohars, was a possession taken on her own behalf, she not being a Benamidar of her husband. In this view of the matter, it has dismissed the suit against defendant 1. The suit has been dismissed against defendant 2 inspite of her admission on the ground that the plaintiff has not claimed, any relief against her in the suit.
4. Dr. Sen Gupta who has appeared on behalf of the appellant has raised the following points. First of all, he contends that the Solenama, Ex. D, has been misconstrued. He says that on a proper construction it ought to have been held that a lease was executed for the first time in favour of the Lohars on 19th August 1926. This Solenama, he says, is not admissible as it has not been registered. He contends further that apart from the question of registration the lease in favour of defendant 1 is not at all affected because the Kabuliat Ex. 1 is before the Solenama was filed and he contends that the position in this view of the matter would be not that defendant 1 did not acquire any right as a lessee but it is just the other way, namely that the Lohars did not acquire a right as lessees from the plaintiff, their lease being subsequent to the lease created by the defendant.
5. His third contention is that having regard to the last clause of Ex. 1, the ordinary rule that a landlord is bound to put the tenant in possession and cannot recover rent until he can put the tenant in possession would not apply because defendant 1 in this case knew that the landlord was not in khas possession that the lands were in possession of another person and that he took upon himself the responsibility of recovering possession. He further contends that in any view, there being no proof that defendant 1 requested the plaintiff to put him in possession, the fact that defendant 1 has no possession would be no answer to the plaintiff's claim for rent. For the last mentioned proposition, Dr. Sen draws my attention to the provisions of Section 108, Clause (A), sub-Cl. (b), T. P Act, and to the decision of Manavadan Thinumalpad v. Messrs Parry &. Co. 1925 Mad 1277. He contends therefore that the finding that defendant 1 is not in possession does not affect his case in the least having regard to the two special features. If I had been in agreement with Dr. Sen Gupta's contention on the construction of Ex. D, it would have been necessary to decide these last two very interesting questions raised by him. But on a consideration of the facts, I am of opinion that the first contention raised by him is not sound and therefore no further consideration arises. The Lohars are raiyats. They were in possession from the year 1910. The plaintiff by instituting a suit for rent in the year 1926 admitted their tenancy right. That suit No. 72 of 1926 was a suit for rent is quite clear from Ex. 5 and Ex. 11, Ex. D, the Solenama is, at most, an ambiguous document. It is consistent with the creation of a fresh lease or the recognition of the existing tenancy of the Lohars with a reduced rent. Simply because the rent of the tenancy is reduced, the continuity of the tenancy does not cease to subsist. The old tenancy continues. Having regard to the nature of the document it was open to the learned Subordinate Judge to look to other evidence for the purpose of coming to a finding as to whether Ex. D created a new tenancy in favour of the Lohars or recognised the tenancy in them which was in existence.
6. On a consideration of the evidence which I hold is admissible, the learned Subordinate Judge has came to the latter conclusion. The position therefore is that at the date of Ex. 1 there was already tenancy held by the Lohars under the plaintiff, and that being so, the plaintiff could not have granted the tenancy in favour of defendant 1. In this view of the matter, I hold that although the kabuliat Ex. 1 was accepted by the landlord and was executed by the defendant under no misrepresentation, still it would have no effect in law and on its basis the plaintiff cannot recover rent from defendant 1. I do not however agree with the learned Subordinate Judge when he dismisses the plaintiff's suit as against defendant 2 also. She was made a party defendant. There was a general prayer in the plaint. She made an admission that she was the tenant under the plaintiff and was liable to pay rent for the years in suit at the rate of four maps of paddy and eight pans of straw a year. The learned Subordinate Judge has proceeded on too technical a view in dismissing the plaintiff's suit.
7. I would accordingly modify the judgment and decree of the learned Subordinate Judge and maintain the dismissal of the suit as against defendant 1, but would pass a decree against defendant 2 and direct a decree to be passed in favour of the plaintiff and against defendant 2 in respect of the period at the rate of four maps of paddy and eight pans of straw per year. For the purpose of determining the money value of the same, the case is remanded to the lower appellate Court. The parties, namely the plaintiff, defendant 1 and defendant 2 will bear their respective costs throughout. Leave to appeal under the Letters Patent is asked for and is refused.