1. The appeal arises out of a suit brought by the plaintiff, the appellant before me, for the recovery from the defendants of certain arrears of rent for the years I, 1308 to 1311, viz., the arrears due for those 5 years in respect of the plaintiff's half share of the patni in which the land is comprised. It appears that the share-holders of the patni have been realising their rent separately.
2. The question at issue is the amount of rent payable by the defendants to the plaintiff.
3. The plaintiff founds his suit upon a registered kabuliat bearing date the year 1279, claiming rent at the rate fixed by that document.
4. The lower Courts have given him a decree for arrears of rent at the lower rate contended for by the raiyats, which appears to be the rate at which they have actually been paying rent for some considerable time. That fact according to the view which has been taken is a sufficient answer to the claim founded upon the kabuliat, though the lower rate does not rest on any written or formal agreement and though the kabuliat is for other purposes a valid and effectual agreement.
5. Apparently the plaintiff's co-proprietor has been realising his rent at the kabuliat rate; but the learned District Judge says: 'It does not follow from the fact that there has been no change of rent in his share, that there has been none in the other share also.' He goes on : The defendant's case is that there has been such change and that case is supported by the plaintiffs' vendor, Mir Mohsen Ali. Now the plaintiff says that Mir Mohsen Ali has, because of strained feelings with him, been falsely supporting the defence and if the plaintiff could show by reasonable good evidence that he himself or Mir Mohsen Ali before him had been realising rent at the rates claimed, Mir Mohsen Ali's present support to the defence would count for nothing. But the plaintiff himself has not realised any rents since his purchase in 1307 and he fails to show by reliable evidence that Mir Mohsen Ali realised from the defendants or their predecessors rents at the rate claimed.'
6. It must be taken therefore that the defend-ants have been paying rents at a lower rate than that stipulated in the kobuliat, and the only question that arises is whether because the landlord or his predecessor-in-interest accepted rent at a lower rate, the plaintiff is now precluded from claiming rent at the kabuliat rate,
7. In the case of Radha Raman Chowdry v. Bhowani Prasad Bhowani 6 C.W.N. 60 the case of Satyesh Chunder Sircar v. Dhunpul Singh 24 C. 20 was distinguished and it was held that the mere acceptance of a reduced rent, though it may amount to a, full acquittance, cannot operate as a binding contract without proof of the agreement forming the basis of the reduction granted, and such an acceptance does not amount to such an agreement or release of a portion of the rent as to have a binding effect. A similar view has been taken by the Madras High Court in the cases of Mayandi Chetti v. Oliver 22 M. 261 and Karampalli Unni Kurup v. Thekku Vittil Muthora Kutti 26 M. 195.
8. The decision in the case of Beni Madhub Gorani v. Lal Moti Dassi 6 C.W.N. 242 is referable to a different principle. In that case, there was a kabuliat which was tainted by, at any rate, a suspicion of fraud and collusion; and the payment of rent at a lower rate than that stated in the kubuliat was held to be admissible for the purpose of showing that the kabuliat from the very first was not intended to be acted upon. The kabuliat here is a subsisting and valid document and the circumstances are therefore very different.
9. The kabuliat in the present case is a registered document, and regard being had to the provisions of Section 92 of the Indian Evidence Act (including proviso 4) the result of the authorities appears to be this, that no oral or parol agreement is of any avail for the purpose of altering the rent fixed by the registered lease.
10. It was further argued for the defendant that the plaintiff was barred from claiming rent at the kabuliat rate by the principle of res judicata. The decrees relied upon for this purpose were not placed before me and I am, therefore, ignorant of their precise effect. The general rule appears to be that a decision in a previous rent suit, as to the amount of rent payable, does not operate as res judicata in a suit for rent of subsequent years, although it may give rise to a presumption under Section 51 of the Bengal Tenancy Act See Kali Roy v. Pratap Narain 5 C.L.J. 92. In the circumstances, I must hold that this contention fails.
11. The result is that the plaintiff is entitled to rent at the rate stipulated in the Kabuliat and that the decree of the lower Court must be modified accordingly.
12. The plaintiff will have his costs of this appeal and in the Courts below.
13. This judgment governs Appeals from Appellate Decrees Nos. 841 and 964 of 1907.
14. The learned pleader for the appellant very properly abandons Appeal from Appellate Decree No. 963 of 1907, in. which case it appears there is a registered document in which the rate of rent is stated to be the rate admitted by the defendant. This appeal, therefore, is dismissed and the plaintiff will pay the defendant his costs.