HASSAN KULI KHAN Vs. NAKCHHEDI NONIA

JUDGEMENT

(1.) The plaintiff obtained a lease in November 1902 of the proprietary interest of one Khalilar Rahman in certain villages, which had been assigned to his share on batwara. He sued the defendants in these cases for bhaoli rent for the year 1310 F.S. on the allegation that the lands used to be held bhaoli till the end of the year 1290, that for the years 1291 to 1295 the rents were nakdi, but were again converted into bhaoli from 1296. The defendants pleaded that they held and always had held the lands on cash, rent and not on produce rent. The first Court decreed the suits in plaintiff's favour. On appeal the Subordinate Judge held that the rents were nakdi and not bhaoli, and that the plaintiff's were precluded by Section 20 of the Cess Act from suing for higher rents than those mentioned in the Road Cess return for 1295, unless it were shown that the rents were lawfully enhanced at a subsequent period, He was of opinion that the conversion of nakdi into bhaoli was necessarily an enhancement, and that, in the absence of a written and registered contract or a decree of Court, such enhancement was illegal.

(2.) This objection to the maintenance of the suits was not taken in the first Court, nor do we think it is sustainable. The conversion related to the medium by which the rent was payable : that is, produce instead of cash. The produce would be a varying quantity and in years of drought might be very little or nothing. We think an enhancement under the section quoted must be referable to an enhancement of the same kind of rent.

(3.) The question whether the rents are bhaoli or nakdi is one of fact. It has, however, been contended before us that in considering this question the Subordinate Judge has misconstrued the sattas which were put in evidence, has not considered the important bearing of the collection papers as corroboration of the oral evidence of collection, and has, as he admits, failed to understand the relevancy of the papers produced from the Irrigation Office to show that half the canal dues were paid by the landlords. The Munsiff has explained very clearly the argument founded upon the canal papers. As a rule, when the lands are bhaoli the landlord pays half the water rates and the tenants half, but when the lands are nakdi the tenants pay the whole water rate. The Munsiff points out that the papers disclose the fact that the landlords have all along paid half the water rate, and in particular he draws attention to the receipts of the year 1297, which came from the plaintiff's custody. It seems clear to us that an important part of the evidence relied upon by the plaintiffs was left out of account by the Subordinate Judge, because ho did not appreciate its significance. In this view we need not stop to consider whether the sattas have been misconstrued, or whether the collection papers, when not discredited, should have had due weight given to them. The cases will have to be remanded for the reason previously indicated and then the whole of the evidence will have to be considered afresh.