BASANTILAL MARWARY Vs. THAKUR JAMUNA PRASAD SINGH

JUDGEMENT

(1.) This second appeal by the defendant arises out of a suit for recovery of rent of a sub-tenure for the last quarter of 1344 and the year 1345 Fasli. The rent of the sub-tenure is Rs, 302 a year. The defendant pleaded that he had been dispossessed of a portion of the tenure by the plaintiff. It appears that the plaintiff realised rent for the period in suit in respect of plot No. 688 of Khata No. 35 from the tenant in possession. At the time when the sub-tenure was created no rent had been assessed in respect of this plot. Since then, however, the defendant has settled it with a tenant at the rate of Rs. 3-12-0 per annum. The first Court was not satisfied that the defendant was entitled to realise rent in respect of this plot under the terms of his lease, or that if he was so entitled, he had not in fact realised it. The appellate Court held that the plaintiff had in fact realised Rs. 5 in respect of plot No. 688 for the period in suit and that it was the defendant who was entitled to this rent.

(2.) The appellate Court, however, held that the plaintiff had realised this rent inadvertently, that is to say, that he realised it under a mistake, and that the plaintiff did not intend to dispossess the defendant from any part of the sub- tenure. Accordingly the plaintiff's suit has been decreed subject to the plaintiff refunding to the defendant Rs. 5 which he has realised.

(3.) In appeal it is contended that as the rent for the sub-tenure was a lump sum the defendant is entitled to suspension of the rent in its entirety.