RAM PRASAD Vs. RAJJAN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for arrears of rent at the rate of Rs. 45 a year for the three years, 1327, 1328 and 1329 Fasli. The defence was that the rate of rent was Rs. 18 only and this had been duly paid. The first Court has found that this defence was false, that the rent recorded until 1325 was Rs. 21-8 that from 1325 onwards Rs. 45 has been entered as the rent and that in the khatauni of 1329 Fasli there appear against the entry of Secs.45 the signatures of the landlord, of one of the tenants and of the Qanungo. This entry it has accepted as an agreement to pay rent at the enhanced rate of Rs. 45 under Section 41 of the Tenancy Act and the signature of the Qanungo it has accepted as a sufficient attestation to dispense with the necessity for registration under Section 97 of that Act, The lower Appellate Court has dissented from this view and has decreed the suit at the rate of Rs. 21-8 holding that no valid enhancement of rent had taken place.

(2.) In appeal two points have been taken, the first that the entry in the khatauni amounts to a valid agreement for the enhancement of the rent under Section 41 read with Section 97 of the Tenancy Act the second that even if this is not the case there is evidence to prove that for the years 1325 and 1325 Fasli rent at the enhanced rate had been paid and that under Section 35 of the Tenancy Act this must be presumed to be the rate payable for the holding.

(3.) Section 41 of the Tenancy Act provides that the rent of an occupancy tenant shall be liable to enhancement only by a registered agreement or by decree or order of a Revenue Court. Section 97 allows the substitution of the attestation of a Revenue Officer not inferior in rank to a Qanungo for registration subject to such conditions as the Local Government may direct. The Local Government has laid down a certain form of endorsement to be entered on in such an agreement. It is quite clear that the mere entry of a figure in the khatauni with the signature of the landlord, the tenant and the Qanungo cannot be regarded as an agreement to enhance rent duly attested under these provisions of the Act. There remains the question whether it is proved that the tenants had been paying rent at the enhanced rate for two years previously to the years in suit. In support of this there is the entry in the khatauni, but no other direct evidence. The plaintiff, when examined on oath, deposed that the defendant's brother and predecessor in interest had executed a registered kabuliat under which he had to pay the higher rate. He did not, however, produce this kabuliat. I am unable to regard the evidence of payment of Rs. 45 for the years 1325 and 1326 as adequate. In these circumstances the appeal must fail and is dismissed with costs including in this Court, fees on the higher scale.