MD SAADAT ALI KHAN Vs. BADALA

JUDGEMENT

(1.) This is the plaintiff's second appeal against the decree of Mr. P. K. Kaul, District Judge, Barabanki, dated 16th May 1944.

(2.) The plaintiff zamindar alleged that the defendant Mt. Badala was his tenant at the annual rate of Rs. 74-6-0 and that some of the rent for 1346 and 1347 Fasli as shown in the plaint was in arrears. Mt. Badala pleaded that she was a tenant at the rate of RS. 70 per year, but in 1344F. the Revising Officer had reduced the rent to RS. 52-8-0 and that she was not liable to pay at a higher rate. She also pleaded that the suit for 1346F. was time-barred.

(3.) The learned trial Court came to the conclusion that there was a new contract between Mt. Badala and the plaintiff in 1345F. and that the rent was RS. 74-6-0 per year. It also held that the rent for the whole 1347F. at the rate of Rs. 74-6-0 was due and that for 1346F. the instalment of rent which fell due on 15th May 1939 alone amounting to RS. 18-9-6 is within limitation. Accordingly the suit was decreed for RS. 92-15-6 with interest and proportionate costs. Mt. Badala went up in appeal and there the learned lower appellate Court admitted certain additional evidence, namely, khataunis of 1343 and 1344F., to ascertain whether Mt. Badala was right in saying that actually the Revising Officer had reduced the rent to Rs. 52-8-0. This evidence was produced with notice to the counsel of both the parties and without objection from any of them and without any request that an opportunity for producing rebutting evidence may be given. When these documents came before the learned District Judge he considered the evidence and was satisfied that notwithstanding the patta of the new tenancy set up by the plaintiff the defendant Mt. Badala was an old tenant as she had not been ejected in execution of the decree for ejectment obtained by the plaintiff on 2nd June 1936 and that the patta at the most was an agreement for enhancement of rent which enhancement could not be made by the plaintiff. The Court accordingly held that Rs. 52-8- 0 was the rate payable and that Rs. 13-2-0 were payable for 1346F. plus Rs. 2-9-0 interest and RS. 17-8-0 as arrears for 1347F. plus Rs. 2-3-3 as interest thereon. Total RS. 35-6-3 proportionate costs of the trial Court were granted and the appellant was directed to bear the costs of the defendant in the appellate Court.