RAJ KUMAR SARKAR Vs. RAJANI KANTA CHAKRAVARTI

JUDGEMENT

(1.) In this case the plaintiff has appealed. He sued for the rent of a durpatni mehal at the rate of Rs. 69. The defendants admitted rent at the rate of Rs. 64, and said that it was divided into halves each defendant being liable for Rs. 32. The lower Courts passed a decree for the plaintiff on these terms.

(2.) It appears that the tenancy was created in September 1866 by a kabuliat which, no doubt, stated the annual jama to be at Rs. 69. But we find a letter on the record within a few days after (Exhibit B) in which it is expressly stated that the jama should be reduced to Rs. 64: It has been found by the lower Courts that the rent was paid at the rate of Rs. 64 per annum for over 30 years. In 1871 there was an alienation of the tenant s interest and the purchasers applied to the landlord for mutation of their names (Exhibit C). Five years later in 1876 we find the document, Exhibit D, a letter, showing that the jama was then recorded at Rs. 64 The plaintiff purchased the landlord s interest in 1904 and he now claims after all these years at the higher rate. I do not think that he can do so.

(3.) The point taken by the learned Vakil for the appellant is that oral evidence cannot be taken to vary a written contract which has also been registered and he relies upon proviso 4 to Section 92 of the Indian Evidence Act. The short answer to that is that the agreement by which the original contract in this case was varied was not a mere verbal agreement, as the Pleaders suggest, but an agreement in writing, by which the parties can always vary, rescind or modify a contract.