SUKHRAJ RAI Vs. DIP NARAIN PANDEY

JUDGEMENT

(1.) This is an appeal by the plaintiffs which arises out of a rent suit instituted on 30 September 1939. The suit was for recovery of arrears of rent for the years 1343 to 1346 Fasli for a holding of 5 bighas, 2 kathas and 2 dhurs. The rent claimed was at the rate of Rs. 22-8-6. The defence to the action was that in 1936 by reason of a kabuliat Ex. C dated 27 May of that year plot No. 149 bearing an area of 10 kathas was settled by the landlord with a third person with the result that the tenant was dispossessed. As the rental payable by the defendant was a lump rental the plea of total suspension of rent on account of dispossession by the landlord was set up.

(2.) The Courts below have accepted the case of the defendant but have also found that plot No. 149 along with a number of other plots was settled by the landlord by the kabuliyat of 27 May 1936 in which this plot was described as a katchery and the inclusion was apparently made by mistake. The Courts below have also found that there stood some sort of katchery on this land several years ago but it had ceased to be in existence now. It seems to me in these circumstances that this is not a case where the landlord has deliberately set out to dispossess his tenant from a particular portion of his tenancy, but it is a case where by mistake a small area of 10 kathas out of the tenancy has gone out of possession of the defendant because it was inserted by mistake in the kabuliyat Ex. C. The recent decision of this Court by Agarwala J in Basanti Lal V/s. Jamuna Prasad Singh A.I.R. 1941 Pat. 417 , applies to the facts found in this case.

(3.) Upon this being pointed out the learned advocate for the respondent does not wish to claim any reduction on account of his having lost possession of 10 kathas. He presses that his right to bring a suit for recovery of possession of this 10 kathas should be reserved to him. In my opinion he does not require any such reservation to be expressly declared by this Court. This right is nlways in him. The result then is that the plaintiff will be entitled to a decree at the rate of Rs. 11-11- 0 per year for the years in suit, this being the rental fixed by the rent reduction officer.