1. This appeal is preferred against a decision of the learned District Judge of Rajshabye, dated the 13th May 1915, affirming the decision of the Munsif at Naogaon. The suit was brought to recover rent under the terms of a kabuliyat for lands that had been let out to the defendants. The suit was undefended. The case turns on a kabuliyat in a form which my experience for the last few weeks in this Bench shows is a form which is very largely adopted by the zemindars in Bengal that is, that a certain sum is given as the cash rent, if one may use the expression, the rest; of the rent, owing to the tender heartedness of the landlord, not becoming payable until the property comes to be settled again. It may be suggested, of course, in a proper case when the proper facts have been found that that is merely a means or attempt by the landlord to override the statutory provisions laid down in Section 29 of the Bengal Tenancy Act and to enhance the rent of the tenants beyond the statutory limit. But, of course, before that can be decided, it has got to be found out and judicially determined which of the two sums mentioned in the kabuliyat is the true rent. If the bigger sum is the true rent, of course the mere fact that the landlord has given a temporary remission would not deprive him from claiming the true rent at a subsequent period. But if it is found, as in the case of Mahamaya Kar v. Kishore Chang 21 Ind. Cas. 948 ; 18 C.W.N. 738 ; 18 C.L.J. 502 that the true rent is the smaller sum, then the larger sum cannot be recovered because it was merely put in the kabuliyat as an attempt to override the provisions of Section 29 of the Bengal Tenancy Act. The decree of the lower Appellate Court must accordingly be set aside and the case must go back to the learned Judge of that Court to make a finding on the evidence on the record which of these two sums, namely, Rs. 12 and Rs 17-14-8 mentioned in the kabuliyat is, in fact, the true rent agreed to be paid by the tenants, and then to dispose of the case according to law. We make no order as to costs.
2. I agree. The question is what was the real or true rent of the holding at the time the contract was entered into.