AKHOY KUMAR GOUS Vs. ERADATULLA KAZI

JUDGEMENT

(1.) This appeal arises out of a suit for arrears of rent. It appears that originally there was a holding of which the recorded tenant was one Najibulla Kazi and the rental whereof was Rs. 22. The present suit was brought by the plaintiff landlord against the grandsons, great grandsons and other heirs of Najibulla and the rent claimed was in respect of the holding of Najibulla at Rs. 22 per annum. The defence of the defendants was that on the death of Najibulla his holding at a rental of Rs. 22 had ceased to exist and that in lien thereof were created four holdings, each in favour of one of the four sons of Najibulla and each at a rental of Rs. 5-8 in respect of one quarter of the total area, In both the Courts below the case of the defendants was accepted and the substantial question before us is, whether those Courts had before them materials which were sufficient and proper to justify them in coming to the conclusion to which they did come. The materials before the lower Courts were a series of receipts granted some by the tahsildar of the plaintiffs, predecessor, one Gadadhar Ghose, and some by the tahsildar of the present plaintiff. These receipts are dated from 1299 onwards and show one or other of the sons of Najibulla as the recorded tenant and show the rental in some oases at "a quarter of Rs. 22," in some cases at "Rs. 5 8, being a quarter of Rs. 22" and in some simply at "Rs. 5-8." There was also before them the further fact that collections had been in this manner from the year 1299 onwards and they had before them the further fact that in order to rebut the inference arising from these documents the plaintiff landlord had found himself under the necessity of fabricating collection papers. There is also oral evidence to which, however, the Court of first appeal did not advert. In view of the decision of the Full Bench of this Court reported as Pyari Mohun Mukhopadhya v. Gopal Path 25 C. 531 at p. 536 : 2 C.W.N. 375 : 13 Ind. Dec. (N.S.) 352, we cannot but hold that these materials were sufficient to justify the loner Courts in coming to the conclusion that the holding at a rental of Rs. 22 had ceased to exist and that in lieu thereof four holdings at a rental each of Rs. 5-8 bad been created, and indeed we are of opinion that the Courts below arrived at a right conclusion. These receipts, in view of the decision in the Full Bench case, show the consent of the agents of the landlord in writing and are sufficient evidence, therefore, of the landlord s consent in writing.

(2.) It has been suggested, in the second place, that it has not been shown that the landlord s agents named in these receipts had authority to split up the holdings. It being admitted beyond dispute that the agents named in there receipts were the landlord s agents, it was for the landlord to show that what they did in dividing up these holdings was beyond the scope of their authority. It appears that one of these agents of a later period has been examined and Speaks to his authority, but there is no evidence as to the authority of an earlier agent of the name of Natabar Bhattacharyya.

(3.) In the third place, it is suggested that there befog a registered potta in favour of the tenant Najibulla of which the rent is specified, that document should not he varied or modified except otherwise than by a further document in writing, but this is not a care of variation or modification in an existing lease. The question here is whether that lease has been put an end to; and in the case of an agricultural tenancy that can be proved otherwise than by a registered document.