1. This appeal has arisen out of a suit for rent. The plaintiffs' case was that the defendants held a jama of 40 bighas of land for a rental of Rs. 65, that in 1301 the defendants' predecessors had executed a kabuliyat in favour of the plaintiffs' predecessors agreeing to pay for the lands of the tenancy at the highest rate of rent of neighbouring lands; and that the lands have now been found to consist of 48 bighas and the highest rate of rent of neighbouring lands is Rs. 4. On such basis the claim was made. So far as the findings of fact are concerned there is no dispute now; the lands are roundly 47 bighas in quantity, and the highest rate is Rs. 4 though the Commissioner reported that it was Rs. 3. Both the Courts below declined to apply either of these rates and were of opinion that the original rate of Rs. 1-10-0 per bigha was the rate to be applied. In deference to a plea of suspension of rent the trial Court dismissed the entire suit. The lower appellate Court held that deduction of rent for one bigha was to be allowed and not suspension of the entire rent. It gave the plaintiffs a decree for rent for 47 bighas at the aforesaid rate. The plaintiffs have appealed. Both the Courts have held that the kabuliyat contravenes Section 29, Ben. Ten. Act.
2. The terms of the kabuliyat, therefore, have to be carefully examined. It states that the tenant was holding a jama of 40 bighas, by guess, at a rate of Re. 1-10-0 per bigha, that is to say, for a rental of Rs. 65, that he would go on paying the said rental, but when the measurement would be next made and the quantity of lands would be ascertained the tenant would remain bound to pay rent at the highest rate paid by tenants of the same class holding neighbouring lands. Two constructions are possible: Ist that if on measurement the tenant is found to cultivate lands outside the boundaries of the plots mentioned in the schedule the tenant would pay Rs. 65 for the 40 bighas at the original rate of Re. 1-10-0 plus rent at the highest neighbouring rate for the area found in excess; 2nd that on measurement the area being accurately determined, the total area would be charged with the highest neighbouring rate: see Sukumari Mitra v. Kinu Mandal : AIR1927Cal924 . I think the former construction should be rejected and the latter accepted; the more so for the reason that the area of 40 bighas had been put down expressly by guess. The question, therefore is whether this contract by which the tenant agreed to pay for the total area at the highest neighbouring rate is a contract which offends against Section 29, Ben. Ten. Act. The answer must be in the negative if the contract in the abstract has to be considered, for there is no definite rate stated in the contract which would increase the rate in any case to more than 2 annas in the rupee. On the other hand the moment the plaintiffs seek to realise the rent either at Rs. 3 or Rs. 4 per bigha, the contract would be hit by the section and so the plaintiff would not be entitled to recover on its basis. As in the present case the plaintiffs rely on the contract only and on nothing else, the claim must fail; because the plaintiffs cannot be heard to say 'If I cannot get so much, give me less.' For it is one contract which must stand or fail as a whole.
3. I also think the claim must fail for another reason. The land was being held from before and the tenancy was an existing one when the kabuliyat was executed. The contract to pay at the highest neighbouring rate was in my judgment void for consideration. It was not a contract for assessment of land which the tenant might come to possess in future by encroachment or otherwise. It was an agreement to pay a different rent when a measurement would be made. For this agreement there was no consideration. I agree with the Munsif that for this reason the agreement regarding payment at an enhanced rate cannot be enforced. The case would have been different if it was a new tenancy which was being created by the kabuliyat with a rent tentatively fixed pending a measurement to take place in future. The plaintiffs undoubtedly have the right to proceed under the law if they desire to enhance the rate of rent bat they cannot be permitted to rely on the kabuliyat for that purpose. The appeal therefore must be dismissed.