KALAR SINGH Vs. MATHURA PROSAD

JUDGEMENT

(1.) These two appeals involve the question whether a part of the claim made by the plaintiffs is open to objection as (Soiling within the statutory prohibition against abwabs and other illegal cesses. The circumstances of each case may be briefly stated : Suit No. 520 relates to a case where there was no kabuliat. In No. 521 there was a kabuliat and that kabuliat has been placed before us. I will deal with the second of these two suits first. This kabuliat states: "that there is an annual nakdi rent of Rs. 4-4 per bigha making in all the specified amounts of Rs. 42-8 annas" and that is followed by the usual provisions to be found in documents of this kind. It is then finally provided that over and above this (that is over and above the rent to which reference has been made), they (that is the tenants) would pay a cartload of husk year after year till the period of the patta was at an end, and in case they fail to do the same they would pay Rs. 6 as the value thereof; and that if they did not pay the said rent annually they should be held liable for interest at the rates specified. Then there is a schedule which gives the following items: Area of land 10 bighas, rate per bigha Rs. 4-4, total rent Rs. 42-8; value of husk, Rs. 6; annual jama, Rs. 48-8. The question in this case is whether the husk is or is not really a part of the rent.

(2.) We have these circumstances that are significant; first, the plaintiffs themselves in their plaint do not treat the husk as a part of the rent in totalizing Rs. 48-8 because they make a claim in excess of that, that is to say, at the rate of Rs. 10 per cartload. Then again, cesses have not been claimed or paid on the basis of the husk being a part of the rent. These were circumstances which were present in the case of Mathura Prasad v. Tota Singh 17 Ind. Cas. 177 : 16 C.L.J. 296, and it is manifest that they must be regarded as having a material bearing on the question whether or not the cartload of husk, whatever may have been said in an isolated part of the document, really was or was not a part of the rent.

(3.) No doubt in Suit No. 521, the Munsif, the Subordinate Judge and Mr. Justice Holmwood before whom the case came thought that the husk was a part of the rent, and that is a circumstance that is to be taken into consideration. But we have the fact that, in circumstances which I think cannot fairly be distinguished from the present, it was distinctly held that the husk was not a part of the rent; and Mr. Justice Holmwood was a party to that decision: Mathura Prasad v. Tota Singh 17 Ind. Cas. 177 : 16 C.L.J. 296. I think we must accept that decision as correct, and in fact there is no suggestion before us that it is incorrect, and also as conclusive of this case. So much for Suit No. 521.