SASI KANTA ACHARJEE BAHADUR Vs. GENDA SHEIKH

JUDGEMENT

(1.) This is an appeal by the plaintiff and arises out of a suit brought by him for recovery of arrears of rent at a rate which was agreed between the parties by a registered kabuliyat dated the 23 of May, 1.916. The facts which are necessary for the determination of this appeal are as follows: One Samir the predecessor of the defendants was by a right of inheritance entitled to one-fifth share of an occupancy holding. He purchased also a non-transferable occupancy holding which belonged to somebody else. He approached his landlord and prayed for sub- division of his ancestral holding and also for recognition of his right as a purchaser of the occupancy holding which he had bought. It seems that the parties agreed and the result of that agreement was the kabuliyat which I have already mentioned. By that kabuliyat the one- fifth share which Samir inherited was amalgamated with the land ho had purchased and a new holding was created at a rental of Rs. 15-7-0. In arriving at that sum the kabuliyat states that the rent of the old holding was taken to be Rs. 46 12-6 and the rent of the purchased jote of Samir was taken to be Rs. 5-8 3. The one-fifth of the rent of the jote together with the rent of the purchased jote was Rs. 15-7-0 and that is the rent which Samir agreed to pay for the consolidated holding which was created by that kabuliyat. The rent due under that kabuliyat for the years 1323 to 1326 is the subject-matter of the present suit.

(2.) The defence of the defendants who were the representatives of Samir was that the kabuliyat was not voluntarily executed by Samir, that he was not cognizant of the terms of the kabuliyat and in fact that the kabuliyat was extorted by force. They further contended that the rent was not realizable because it contravenes the provisions of Section 29 of the Bengal Tenancy Act.

(3.) This suit was tried along with other suits and we are concerned with suit No. 530 out of the three suits tried together. The learned Munsif found that the kabuliyat was executed voluntarily and with full knowledge of its contents and that it was validly executed. The learned Munsif, however, gave effect to the second defence and reduced the rent from Rs. 15- 7-0 to Rs. 12-5-11 per annum and made a modified decree on that basis. On appeal by the landlord-plaintiff the learned Subordinate Judge has affirmed the decree of the Munsif and the present appeal is by the plaintiff against the decree of the Subordinate Judge.