1. This appeal arises out of a suit for rent based, upon a kabuliyat.
2. The kabuliyat was for a term of 10 years. It was stated in the kabuliyat that the rent was fixed at Rs. 76 a year, that there was to be a temporary abatement of Rs. 26, that Rs. 50 would be payable for the term of the kabuliyat, that on the expiry of the term there would be a fresh settlement, that so long as a fresh settlement was not made, the rent was to be paid at the rate of Rs. 76 a year.
3. The defence inter alia was to the effect that the stipulation about rashad inserted in the kabuliyat was a penal clause and was never intended to be acted upon.
4. It is found that although the term of the lease expired long ago, the defendant went on paying rent at the rate of Rs. 50, which appears to have been entered in the landlord's book as amanat and although the plaintiff's servants pressed the defendant to enter into a fresh settlement, he never demanded rent at the rate of Rs. 76. The Courts below have held under the circumstances that the stipulation for payment of rent at the rate of Rs. 76, after the expiry of the term and so long as there was no fresh settlement, was never intended to be acted upon.
5. No doubt, the mere fact that the rent was realized at the rate of Rs. 50 for a number of years does not preclude the landlord from recovering rent at the rate agreed upon, because the receipt of rent at the reduced rate is consistent with the reduction having been a mere voluntary and temporary abatement: and any subsequent variation of the rent would require a registered instrument as the original kabuliyat in the present case was a registered document. But the Courts below have in effect accepted the defendants' case, namely, that the stipulation that the defendants should pay at the rate of Rs. 76, after the expiry of the term so long as a fresh bandobast was not made, was inserted in the kabuliyat as a penal clause, that is for the purpose of putting pressure upon the defendant to enter into a fresh settlement after the expiry of the term of the kabuliyat, and was not intended to be acted upon.
6. Having regard to the fact found, we think that the appeal must be dismissed with cost.