SAMBHU RATAN TEWARI Vs. AYODHYA KURMI

JUDGEMENT

(1.) This Second Appeal by the plaintiff is directed against the decree and judgment of the Addl. Subordinate Judge in Rent Appeal 17 of 1962 modifying the decree and judgment of the trial court in suit No. 1 of 1970.

(2.) The facts leading to the filing of this appeal may be summarised thus: - - In respect of land of 13 kanis 2 gandas 2 karas in jote No. 17 of Mouja Marracherra in Kamalpur Tahsil the defendant is a korfa tenant under the plaintiff on a yearly rental, including cess, of Rs. 2 -4 -0 per kani and that the defendant in spite of demands has not paid the rent for the years 1366 to 1368 T. E. and hence the plaintiff filed the rent suit No. 1 of 60 in the court of Munsiff. Kamalpur to recover the arrears of rent: or in the alternative for assessment of fair and equitable rent and for a decree for the said amount. The defendant, among other contentions, pleaded that his father has been in occupation of 8 kanis of land on a yearly rental of Rs. 19 -4 -0 as a korfa tenant under one Daya Sankar Tiwary, the plaintiff's predecessor in title and that after the plaintiff has purchased the land he has recovered the rent at the same rate and that he has paid the rent to the plaintiff for the three years in question but the plaintiff has not issued the receipts. On the pleadings, the lower court settled the appropriate issues and on issue No. 2 (a), in view of the admission of the defendant, it is held that the defendant is in arrears of rent for the suit period. So far as the extent of land in the possession of the defendant is concerned, in view of the report of the Commissioner, it was found to be 12 kanis 9 gandas 3 karas and 16 dhurs and as both parties failed to prove the agreed rent, the trial court proceeded to assess the fair and equitable rent payable by the defendant and relying on Exts. P -l and P -l (a) the kabuliyats and the evidence of P. Ws. 3 and 4. the trial Court found that Rs. 2 -4 -0 per kani is the prevailing rate of rent in that locality. and accordingly fixed the rent at that rate and decreed the suit at Rs. 28 -2 -0 per year as rent payable by the defendant. Against that decision, the defendant has preferred an appeal and the learned Subordinate Judge, observing that the question of tenant paving fair and equitable rent as provided under Sec. 24 of Act 1 of 1296 T. E. would apply where no rent has been settled between the parties, that in the instant case fair and equitable rent cannot be assessed as the parties have agreed to a specified rent and reviving on Exts. D -1 and D -2 the receipts filed by the defendant held that the rate of rent is Rs. 1 -12 -0 per kani and accordingly for the extent of 12 kanis 9 gandas 3 karas and 16 dhurs the defendant would be liable to pay at Rs. 21 -14 -0 per year: consequently he allowed the appeal in part and modified the judgment and decree of the lower Court decreeing the suit for rent at Rs. 21 -14 -0 per year. Aggrieved by the same the plaintiff has come up to this court in second appeal.

(3.) Admittedly the land in question originally belonged to one Daya Sankar Tewary and Dutta Ram Tewary. The defendant's father was a korfa tenant under them. In the year 1349 T. E. the plaintiff has purchased the jote rights in the suit land from Daya Sankar and Dutta Ram and the defendant continued to be a korfa tenant of the lands under the plaintiff. According to the plaintiff, the extent of the land in the possession of the defendant is 13 kanis 2 gandas 2 karas of jote No. 17 of Mouza Marracherra. As the defendant contended that the extent of land is only 8 kanis, a Commissioner was appointed to measure the land and he found it to be 12 kanis 9 gandas 3 karas and 16 dhurs. Both sides have agreed to the correctness of the Commissioner's report and both the courts below proceeded on the basis that the extent of land in the possession of the defendant is 12 kanis 9 gandas 3 karas and 16 dhurs. While the plaintiff alleges that the rent, including cess, was stipulated at Rs. 2 -4 -0 per kani a year, the defendant pleaded that the land of 8 kanis was leased out at a consolidated rent of Rs. 19 -4 -0 per year by the plaintiff's predecessor -in -title that his father paid at that rate to the plaintiff's predecessor -in -title. and after the plaintiff has purchased the land the rent was paid to him at the same rate but the plaintiff has not issued any receipts. As the plaintiff failed to prove the agreed rent to be Rs. 2 -4 -0 per kani a year and as the receipts Exts. D -1 and D -2 filed by the defendant to prove that the agreed rent was Rs. 19 -4 -0 per year for the entire land of 8 kanis relate to the land in jote No. 11 the trial court proceeded to assess the fair and equitable rent and on the basis of the oral evidence let in and the kabuliyat executed by the other tenants in favour of the plaintiff in respect of some land in the same mouza. He assessed the rent including cess at Rs. 2 -4 -0 per kani per year and decreed the plaintiff's suit calculating at that rate for the extent of land in the possession of the defendant. On appeal by the defendant, the lower appellate court observing that Sec. 24 of Tribunal Landlord and Tenant Act does not apply to a case of a korfa tenant and that the rights between the parties in this case is governed by the contract, entered into between them, relying on the 2 receipts Exts. D -1 and D -2 held that the agreed rent was Rs. 1 -12 -0 per kani. This finding of the lower appellate court which is based on Exts. D -1 and D -2 cannot be upheld. The material on records does not at all establish that there was any agreement between the plaintiff and defendant regarding the rate of rent for the land. Both the courts found that the plaintiff has miserably failed to adduce satisfactory evidence to Drove that the rate of rent stipulated was Rs. 2 -4 -0 per kani. Exts. D -1 and D -2 relied on by the defendant which are accepted by the lower appellate court also do not establish that the agreed rent between the plaintiff and the defendant was Rs. 1 -12 -0 per kani for the suit land. The trial court has rightly rejected these two receipts from, consideration not only on the ground that they were not filed by the defendant in the previous suit filed by the plaintiff to recover rent but also on the ground that they relate to some land in jote No. 11 while the land in question is in jote No. 17. In the plaint it is categorically alleged that the land in the possession of the defendant is in jote No. 17 of mouza Marracherra and there is no denial in that regard in the written statement nor is there any evidence to show that the old jote No. 11 was subsequently numbered as jote No. 17. Those two receipts are of the year 1337 and 1345 T. E. while the plaintiff purchased the land in 1349 T. E. That being so those two receipts which relate to land in jote No. 11 cannot be regarded as a basis to find that there was an agreement between the plaintiff and the defendant whereunder a consolidated and lump sum rent of Rs. 19 -4 -0 per year was fixed for the suit land nor is it possible to come to a conclusion that the defendant has agreed to pay at the rate of Rs. 1 -12 -0 per kani. The lower appellate court has not at all adverted its attention to the fact that Exts. D -1 and D -2 relate to some land in jote No. 11 while the land in question is in jote No. 17. Thus the position is that there is no evidence on either side to establish what the agreed rent was for the suit land. In such circumstances the trial court has rightly assessed fair and equitable rent payable by the defendant.