SATISH CHANDRA BASU MALLIK Vs. KAMINI MOHAN GOSWAMI

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs in an action for rent. The plaintiffs claim rent at the rate of Rs. 152-13-3 a year. The defendant asserts that the rent payable is only Rs. 111-3 a year. The sole point in controversy between the parties, therefore, relates to the amount of rent annually payable. The tenancy appears to have been created by a lease granted on the 11 January 1871 for a period of ten years. After the expiry of the term of this lease, another lease was granted on the 22 August, 1881, also for a term of 10 years. Since the termination of this period no fresh document has been executed, but the defendant has continued in occupation upon payment of the rent stated in the second lease. The determination of the liability of the defendant turns consequently upon the legal effect of these two documents. In the lease of 1871, the rent is stated to be Rs. 119-8-3 in the body of the document; but in the schedule attached thereto, there is an elaborate statement of the mode in which the rent had been ascertained. The different kinds of land are classified and rent is assessed upon the lands of each class at a certain rate. Upon this calculation the total rent is stated to be Rs. 152-13-3. Then follow two important words, which have given rise to the present controversy between the parties, these words are "Bad hajat Rs. 33-5." The balance is Rs. 119-8-3. In the second lease of 1881, in the body of the document the rent is stated to be Rs. 111-3, but in the schedule annexed, we have a calculation as to the mode in which the rent had been assessed similar to what is appended to the lease of 1871. The total rent is shown as Rs. 152-13-3, but there is a deduction allowed, with the result that the balance of rent actually payable is stated to be Rs. 111-3. Here also, the deduction is allowed under the description Bad hajat. The case for the plaintiffs is that the meaning of the expression ?Bad hajat" is ?deduction on account of rent in suspense or abeyance." They explain that at the time when the lease of 1871 was granted, a portion of the land of the tenancy was covered by water and sand, and so really not fit for cultivation, that by reason of this circumstance the landlord agreed to allow the tenant a temporary deduction of the rent, but that it was expressly understood between the parties that as soon as the land improved in quality and became fit for cultivation, the rent temporarily kept in abeyance would be revived and would become payable by the tenant. They assert that since the execution of the leases of 1871 and 1881 the land has improved in quality and that the landlords have consequently become entitled to realise the full rent of Rs. 152-13-3. The defendant resists the claim on the ground that there was no such agreement, and that even if there was any such agreement, the plaintiffs are not entitled to prove it by oral evidence.

(2.) The original Court went into the merits of the case and decided against the plaintiffs. Upon appeal the Subordinate Judge has affirmed that decision, but on an entirely different ground. He has declined to adjudicate upon the truth or otherwise of the allegation of the plaintiffs, but has held that, as the term of the second lease has expired, the defendant is not bound by the alleged agreement for temporary suspension and subsequent revival of the rent. In this view, he has concluded that the claim is in substance one for enhancement of rent and as such claim cannot be sustained under the provisions of Secs.29 and 30 of the Bengal Tenancy Act, the plaintiffs are entitled to realise rent only at the rate of Rs. 111-3 a year.

(3.) The plaintiffs have now appealed to this Court and, on their behalf, the judgment of the Subordinate Judge has been assailed on two grounds, namely, first, that the decision is inconsistent inasmuch as, although the Subordinate Judge holds the defendant not bound by the terms of the lease of 1881,on the ground of the expiry of the period mentioned therein, yet he gives the defendant the benefit of the lease to hold the land upon payment of rent at the rate of Rs. 111-3, and, secondly, that the defendant is bound by the terms of the contracts of 1871 and 1881 and the plaintiffs are entitled, upon proof of the alleged agreement, to realise rent at the full rate of Rs. 152-13-3. In our opinion, both these contentions are clearly well-founded and must prevail.