BAIJNATH PROSAD SAHU Vs. RAGHUNATH RAI

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in a suit for recovery of arrears of rent. The case for the plaintiff is that the tenancy was created by a kabuliyat, executed on the 4th February 1887, for a term of five years, that after the expiry of the term, the tenant has held over and that the plaintiff is entitled to realise rent at the rate of Rs. 98-2 as for the years 1906 and 1907. The defendant resists the claim mainly on the ground that the rent payable is Rs. 37-8 a year.

(2.) The Court of first instance found that the tenancy had been created under the kabuliyat, that the defendant entered into occupation on the strength thereof, that he held possession of the land for the full term of five years upon payment of rent at the rate mentioned in the kabuliyat and since the expiry of the term, he has held over. In this view, the Court of first instance made a decree in favour of the plaintiff at the rate claimed : upon appeal, the Subordinate Judge has reversed that decision. He has held, on the authority of the decision of this Court in the case of Mukunda Chandara Sarma v Arfan Ali 2 C.W.N. 47, that the mere fact that the plaintiff obtained a kabuliyat from the defendant does not entitle him to claim rent at the rate mentioned therein after the expiration of the term of the tenancy. The Subordinate Judge has, at the same time, held that the defendant has failed to prove that he has been paying rent at the rate alleged in defence : yet the Judge has modified the decree of the Court of first instance and allowed the plaintiff rent at the rate admitted by the tenant.

(3.) On behalf of the plaintiff, it has been contended in the present appeal that the view taken by the Subordinate Judge is erroneous and that the plaintiff was entitled to get rent at the rate mentioned in the kabuliyat when the defendant failed to prove that after the expiry of the term, the rate of rent had been altered by agreement of parties In our opinion, there is no room for controversy that the view taken by the Subordinate Judge cannot be supported.