RAM DOYAL DAS Vs. KAMALA PRIYA DEBYA

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of rent for the year 1308 B.S. It appears, upon the judgments of both the Courts below, that in the year 1281 B.S. corresponding to 1874 the defendant executed a qabuliat in favour of the plaintiff in which the jama of the holding in his occupation was stated to be Rs. 25-9-9 but that, on account of the straitened circumstances of the defendant, the landlord agreed to hold in abeyance (hajut) a portion of the jama, namely, Rs. 11-15-6, and to receive Rs. 13-10-3. Between the years 1281 and 1306, the defendant paid rent at the rate of Rs. 13-10-3. In the year 1307, he executed another qabuliat in favour of the plaintiff in which the jama of his holding was again mentioned to be Rs. 25-9-9, and it was stated that, his condition in life having improved be agreed to pay out of the amount that was being held in abeyance Rs. 3-6-6 in addition to Rs. 13-10-3. Upon the findings arrived at by both the Courts below the defendant actually paid for the year 1307 the jama so agreed to be paid, namely, Rs. 17-0-9. And the plaintiff in this case seeks to recover rent for the year 1308 at the rate of Rs. 17-0-9.

(2.) The Court of first instance held that the agreement executed by the defendant in the year 1307 to pay an additional amount of Rs. 3-6-6 was in violation of the provisions of Section 29 of the Bengal Tenancy Act, and that, therefore, the plaintiff was not entitled to recover the same.

(3.) The District Judge on appeal, has, however, come to a different conclusion. He has held that the jama of the holding must be taken upon the qabuliat of the year 1281, and that of the year 1307 to be Rs. 25-9-9, and that Rs. 11-15-6 having been only kept in abeyance (hajut) for the time being, it was quite lawful for the defendant to agree in the year 1307, to pay, out of the amount so kept in abeyance, Rs. 3-6-6 and that this was not in violation of the provisions of Section 29 of the Bengal Tenancy Act. He has, accordingly, given the plaintiff a decree at the rate claimed by him. Against this judgment the defendant has appealed.