MAHAMMAD SHEIKH Vs. RAMESH CHANDRA DE

JUDGEMENT

(1.) THIS appeal arises out of a rent suit. Plaintiff's case was that paddy rent for four years (from 1951 to 1954 B.S. both inclusive) was in arrears. The paddy rent due from the tenant at the stipulated rate of 13 Mds. 5 Srs. per annum came to 52 Mds. 20 Srs. Its price was claimed at the market rate, which came to Rs. 420/ -. The Plaintiff also claimed Rs. 50/ - by way of compensation. Out of his total claim of Rs. 470/ - he remitted a sum of Rs. 170/ - and claimed Rs. 300/ - only. The defence set up was that the rent was due for two years only and that according to the terms of the Kabuliyat which formed the basis of the suit, the Defendant was liable to pay Rs. 30/ - per annum only and Plaintiff was not entitled to claim the price of paddy at the market rate.

(2.) THE trial Judge found that rent for two years alone was due. On this point his finding was in favour of the Defendant but he agreed to give to the Plaintiff the price of paddy for two years at the market rate. He decreed the claim in part. The decree was for Rs. 210/ - only. The Defendant appealed from the decree. Plaintiff put in cross objections. The learned Additional Subordinate Judge agreed with the Munsiff in holding that Plaintiff was entitled to recover the price of the paddy at the market rate. On the other point in the case he found that rent for four years was due. He therefore dismissed the appeal and allowed the cross -objections with the result that the full sum of Rs. 300/ - which was claimed was decreed with costs. Defendant has appealed to this Court.

(3.) THE second question that arises in the case is whether Plaintiff can claim the price of paddy at the market rate. The Courts below are agreed that his claim was well founded. In coming to this conclusion they relied on - -'Komaraddi v. Monmohini Dasya', 21 Cal WN 100 (Notes)(A) and - -'Akbar Ali v. Durga Kripa Sen', 12 Cal LJ 589 (B). Mr. Dam has argued that though the Kabuliyat provides for rent in kind, there is a Clause in the document, according to which if paddy is not paid by 30th of Magh, the Defendant is liable to pay Rs. 30/ - in all as the price of the said paddy.' He contends that by virtue of this Clause if there is default in payment of paddy, the fixed amount of Rs. 30/ - per year is all that the Plaintiff can claim. This Clause excludes his right to claim the price of paddy at the market rate. He has relied on - -'Basiruddi v. Afasaran -nessa Bibi', AIR 1917 Cal 26 (C) - -'Afar v. Surya Kumar', 12 Cal LJ 649 (C & D) and - -'Bangshiram Mondal v. Prasannomoyi Debi' : AIR 1928 Cal 166(E). He has also argued that no oral evidence can be permitted to be adduced to vary the terms of a registered Kabuliyat and in support of this contention he had relied on - -'Manindra Chandra v. Durga Sundari', AIR 1917 Cal 734 (F) and - -'Lakhatulla v. Bishwambhar Roy', 12 Cal LJ 646 (G).