QAYUM BUX Vs. LRADHEY SHIAM

JUDGEMENT

(1.) This is an appeal against a judgment and decree, dated 2l March, 1942, of the Civil Judge of Budaun by which he varied a judgment and decree, dated 21st March 1940, of the Assistant Collector, first class, of Budaun in a suit for recovery of arrears of theka money. On 15 August 1932, defendant 2, Ram Sahai, who was the usufructuary mortgagee of 86 bighas and 14 biswas of Mauza Narao Khurd, Mahal Asmani, Patti Molvi Wahid Bux, executed a patta of the said property in favour of defendant 1, K.B. Maulvi Wahid Bux. The rent reserved under the theka was a fixed sum of Rs. 430 which was payable every year by the thekadar irrespective of any "calamity, suspension or remission of rent." On 1 May 1939, the lessor made an assignment of the theka money which was due for 1344F. to the plaintiff Radhey Shyam, and after taking assignment on 26 May 1939, he raised an action in the Court of the Assistant Collector, first class, of Budaun for recovery of a sum of Ks. 454 as the theka money together with a sum of Rs. 118- 1-0 for interest due upon it. The trial Court decreed the claim for a sum of Rs. 286 with costs and interest. This figure was arrived at after deduction of a sum of Rs. 168 from the claim and the sum of Rs. 168 was deducted partly on account of the remission granted by the Government and partly on account of the inability of the thekadar to collect his dues from tenants. On an appeal made by the assignee the Civil Judge of Budaun came to the conclusion that under the terms of the thekanama the thekadar was not entitled to claim any deduction for remission and non-realization of dues and that this matter was res judicata between the parties, and in the result he decreed the claim in full. We have now a second appeal by the thekadar.

(2.) It is not disputed that under the terms of the thekanama the thekadar cannot claim any deduction on account of any remission of rent or on account of non- realization of rent from tenants, whatever be the cause for the same, and that in previous suits between the parties the terms of the theka have thus been interpreted. But the thekadar contends that notwithstanding the terms of the thekanama jand previous decisions the thekadar under Section 219, U.P. Tenancy Act (17 of 1939), is entitled to remissions which were made in the iyear 1344F., and the main question for our consideration in this appeal is whether this contention is legally correct. At the time when the theka money became due and was assigned and at the time when the action was raised the Agra Tenancy Act (3 of 1926) was in force. The action was raised under Section 132 read with Section 220, Agra Tenancy Act. Remissions claimed by the thekadar were governed by Secs.73 and 74 read with Section 229 of the Act and it is not disputed that there being a contract to the contrary in the theka, the remissions could not be claimed by the thekadar under the Agra Tenancy Act (3 of 1926). During the pendency of the suit and before its decision the U.P. Tenancy Act (17 of 1939) came in force. Section 296, U.P. Tenancy Act, 1939, provides for the disposal of pending suits in these terms: A suit under any of the provisions of the Agra Tenancy Act, 1926...which is pending at the commencement of this Act...shall be decided in accordance with the corresponding provision of this Act and if there is no such corresponding provision, the proceedings relating to such suit shall be quashed.

(3.) In the U.P. Tenancy Act, 1939, corresponding provisions exist to all the sections referred to above by us of the Agra Tenancy Act of 1926. The action which was raised under Section 132 read with Section 220 of Act 3 of 1926 has now to be disposed of under Section 148 read with Section 222, U.P. Tenancy Act, 1939, and there is no material difference in these provisions of two statutes. Secs.73, 74 and 219 of Act 3 of 1926, which deal with remissions generally and remissions to thekadars find corresponding provisions in the U.P. Tenancy Act of 1939, in Secs.123, 124 and 219. But there is a material difference in Section 219 of the old and new Act. By the former section the thekadar could claim remissions if there was no contract to the contrary in the theka, whereas by the latter statute this condition has been removed and the thekadar is entitled unconditionally to remissions.