1. In these three appeals by the plaintiff landlord the only question raised is as to whether the Courts below were right in disallowing certain sums which were shown as hajat in the kabuliyat executed by the tenant. The question really turns on the construction of the kabuliyats which are in similar terms in the three appeals. The terms of the kabuliyat of the 4th Aswin, 1296, are as follows:
Exhibit 1(A) kabuliyat executed by Easin Sheikh in favour of Govinda Chandra Roy, dated the 4th Aswin, 1296 B.S. Dowl Bandobast:
Babu Gobinda Chandra Roy zemindar son of late Babu Gurudas Roy in possession of Taraf Nagirat Pergana Mahmudsahi by virtue of auction-purchase right, by caste Kayestha, by profession zemindar, of Narail Mokam Brahmandanga, Pergana Naldi, Station Sub-Registry Sub-Division Narail, District Jessore. Within the said Taraf in village Sithali tenant Maizaddi Sheikh, in possession Easin Sheikh, Rukhatulla Khan and Pirmamud Sheikh, pattan on kharij, Easin Sheikh, son of late Ajimuddi Sheikh by caste Musalman by occupation jamajami and cultivation, of Sithali, Pergana Mahmudsahi, Station Sub-Registry Sailkupa, Sub-Division Jhenidah, District Jessore, dated the 4th Aswin 1296 B.S.
Tenant Jamagujastha Jer hajat Talab JamaJamagujastha including hajat Rs. 41-7-9 1/2 deducting Rs. 28-12-11/2 in the remaining Nizshare Pattan (tenant) EasinSheikh Rs. 12-11-8 1/4 Rs. 2-3-8 1/4 Rs. 6-8-0For the jama in Khamar Re. 0-13-6 1/2 6 1/2 gandas ' 4-13-0--------------------------------------------------Rs. 13-8-14 3/4 Rs. 2-3-14 3/4 Rs. 11-5-0Dowl kabuliyat executed by Easin Sheikh, son of late Ajimuddi Sheikh, by caste Musalman by occupation jamajami and cultivation, of Sithali Pergana Mamudasahi, Station Sub-Registry Sailkupa Sub-Division Jhenidah, District Jessore. In Mouza Sikhali within Taraf Nagirat Pergana Mamudshahi appertaining to your taluk bearing Touzi No. 206 of the Jessore Collectorate there was a jama of Rs. 41-7-91/2 gandas including hajat in the name of Maijuddi Sheikh, at a variable rent. I, Dukhatuilyu Khan and Pir Mamud Sheikh are in possession and enjoyment of the said jama on payment of rent. Now we having prayed for kharij and for executing dowl kabuliyat separately and you having granted our prayer I have appeared before you and in respect of my own share of Rs. 12-11-81/4 out of the aforesaid jama of Rs. 41-7-91/2 including hajat and in respect of 13 annas 6-1/2 including hajat out of the khamar I execute this dowl kabuliyat for a total jama of Rs. 13-8-143/4 including hajat at a variable rent, for the lands included within the boundaries described below, at talab jama of Rs. 11-5 by keeping Rs. 2-3 annas 143/4 gandas as hajat.
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The aforesaid amount of Rs. 2-3-113/4 which is kept in hajat you shall include it within the talab jama whenever you please and you shall realise the rent of Rs. 13-8-143/4 as aforesaid. If we do not pay the same amicably you shall realise it by suit with interest and costs. To this any objection on our part will be rejected.
2. It will appear from the terms set forth above that the hajat is treated as a part of the talab jama. The kabuliyat first sets forth the jama gujastha including hajat to be Rs. 13-8-14-3/4 It then states: 'I execute this dowl kabuliyat for a total jama of Rs. 13-8-14-3/4 including hajat for the lands included within the boundaries described below, at 11-5 by keeping Rs. 2-3-l43/4 as hajat' It seems to me that the word hajat signifies that the sum of Rs. 2-3-143/4 was kept in abeyance for sometime and that it was optional with the landlord to realise the sum of Rs. 2-3 14 3/4 at any time he liked as a part of the talab jama as will appear from the following passage in the kabuliyat: 'The aforesaid amount of Rs. 2-3-143/4 which is kept in hajat you shall include it within the talab jama whenever you please and you will realise the rent of Rs. 13 8-143/4 as aforesaid.' As has been observed by the Judicial Committee of the Privy Council in the recent case of Chattra Kumari Devi v. Broucke in each case it has to be ascertained whether the sum claimed is really part of the rent agreed upon to be paid as consideration for the lease. ' On the construction of the kabuliyat there can be no doubt that the hajat was a part of the rent, and it could be realised as such whenever the landlord desired to do so.
3. The Courts below have relied on a decision in the case of Abhoy Sankar Mozumdar v. Rajani Mandal 47 Ind. Cas. 359 : 22 C.W.N. 904 : 29 C.L.J. 371, where it has been laid down broadly that the word hajat is a well-known expression for a sum which never having been part of the rent is held in terrorem over the raiyat and recorded as held in suspense for the time being. The case is, however, distinguishable from the present case, for the kabuliyat in that case stated that the land bore a variable rent of Rs. 11 ' exclusive of the amount payment whereof is kept in suspense by way of relief ' and it would appear that the amount kept in suspense was treated as distinct from the rent of Rs. 11 and odd and there were no terms in the kabuliyat as I have in the appeals before me to the effect that the amount described as hajat would be treated as a part of the talab jama whenever the landlord pleased and could be realised as such. The result is that the appeals are allowed and the plaintiff landlord will get decrees for the sums shown as hqjat in each of three suits in which the three appeals arise. The decrees of the Munsif are to be modified accordingly.
4. The respondents have not appeared. There will be no order as to costs.