1. This was a suit for rent based on a kabuliat. The suit has been decreed by the Courts below and defendant appeals.
2. A preliminary objection is taken that the appeal is incompetent for the reasons given in Order XLVII, Rule 4, proviso (A). It appears that this appeal was dismissed under Order XLI, Rule 11, and was revived without notice to the opposite party. It appears to me, however, that as the order reviving the appeal was passed by a Division Bench of this Court, it cannot be questioned by us.
3. The kabuliat on which the suit was based has expired and it is contended on behalf of the plaintiff that the tenant held over under the kabuliat and is bound by its terms. The terms of the kabuliat are stated by the District Judge as follows: 'The land was settled with him in order that it might be planted with grafted mangoes. He was to plant the mangoes in the first year of his lease and to have them ready for bearing at the end of five years. At the outset he was to hold at a total jama of Rs. 23-4 which is at the rate of Rs. 3 per bigha. As soon as the mango trees came into bearing, he was to hold the orchard on bhauli terms and to pay half of the produce as rent. If he failed to plant the trees he was to pay rent at the rate of Rs. 10 per bigha'. It appears to me that the ' plaintiff in this case is not entitled to more than Rs. 3 a bigha. The case comes clearly under the Tenancy Act, as the land was leased for horticultural purposes, and the kabuliat was executed long before the amendment of Section 1 of the Act by Bengal Act of 1907. Under the Tenancy Act enhancement of the rent of raiyats, whether occupancy raiyats or non-occupancy raiyats, is greatly restricted. These restrictions constitute a valuable protection for the tenants, and, in my opinion, the Courts should always be very careful to prevent landlords from evading these restrictions by inducing improvident tenants to take lands at low rents with a stipulation for future enhancement. In the present case, however, these considerations do not arise. The kabuliat was for the years 1304 to 1312. Mangoes were to be planted in the first year of the lease and were to be made ready for bearing at the end of five years, that is to say, at the end of 1308. If the tenant failed to carry out these conditions, he was liable for rent at the rate of Rs. 10 per bigha. The District Judge found that the tenant did not plant any trees and, therefore, it is quite clear that from the end of 1308, if the stipulations in the kabuliat were binding upon him, he was liable for rent at the rate of Rs. 10 a bighi for the years 1309 to 1312. The plaintiff, however, sued for rent for those years at the rate of Rs. 3 a bigha. That being so, I do not think that after the expiration of the kabuliat he could obtain any higher rate. If the tenant held over, he held over under the same terms as in the years 1309 to 1312. There was no change in the condition of the land after the year 1312 and the plaintiff having sued for rent after the default of the tenant at the rate of Rs. 3 a bigha, he was not, in my opinion, entitled, after the expiry of the kabuliat, to enforce the stipulation which he had waived during the term itself.
4. The appeal should, therefore, in my opinion, be allowed and the plaintiff should obtain a decree for rent at the rate admitted by the defendant with interest at the rate of 12 per cent, per annum, and the appeal is decreed accordingly.
5. The parties will bear their own costs throughout.
6. I agree