SURMAN SHAIKH KAZI Vs. NAFAR CHANDRA PAL CHOUDHURY

JUDGEMENT

(1.) This second appeal is by the defendant and arises out of a suit for rent brought by the plaintiff for a period commencing from 1321 down to 1324 at the rate of Rs. 25-12-5 gandas annually and also for cesses. The suit was based upon a kabuliyat executed by the defendant on the 25 November 1910.

(2.) The defence of the defendant was that Forong the father of the defendant who was the original tenant left a widow and also a daughter who were alive and that as the widow and the daughter had not been made parties to the suit, the suit for rent was not maintainable. The defendant further pleaded that the kabuliyat was vitiated by fraud and collusion. The defendant also pleaded tender of the rent which was not accepted. Defendant further pleaded that before the kabuliyat was executed the rent paid by his father was at the rate of Rs. 22- 14-10 gandas and that the rent was paid at that rate.

(3.) The Court of first instance found that the kabuliyat was vitiated by fraud and, therefore, was not binding upon the defendant and that, therefore, the rent payable by the defendant was at the rate of Rs. 22-14-10 gandas and gave a decree at that rate. That Court further held that the decree granted to the plaintiff was merely a money decree as the other two heirs of Forong were not made parties to the suit.