JNANENDRA NATH ROY Vs. NALINI MOHAN GHOSE

JUDGEMENT

(1.) These two appeals arise out of two suits for rent in respect of four holdings, or, to be more correct to respect of three holdings, the last two holdings being amalgamated into one The four holdings were originally held by the defendants on lower jamas. On the 21 February 1916 the defendants executed a kabuliyat, in favour of the land-lords agreeing to pay enhanced rent for the jamas within the statutory limit, namely, not more than two annas in the rupee.

(2.) In respects of the first jama, which was for a plot of land measuring 4 bighas, 12 cottas, 8 chattacks, it is staged in the kabuliyat that the jama was increased by two annas in the rupee to Rs. 10-2-6. In schedule (kha) attached to the kabuliyat another jama is mentioned, which is described as one bigha of land " for which an agreed quantity of paddy was to be delivered but which mode of payment was converted into the money rant of Rs. 5-3-9, and this sum is amalgamated with the enhanced annual jana, Rs. 10-2-6, The rent for the aggregate lands in the said Bhogpur mauza as per schedules (ka) and (kha) is fixed at Rs. 15-6-7 only." With regard to the other jamas the enhancement agreed upon by the parties is not in contravention of the provisions of Section 29, Bengal Tenancy Act.

(3.) The suit out of which S. A. No. 814 of 1921, arises is in respect of the last two jamas mentioned in schedule (kha) of the kabuliyat consolidated into one jama of Rs. 33-9-9. This suit has been decreed by both the Courts below. It is argued on behalf of the appellant before us, that the kabuliyat being one and indivisible the claim cannot be enforced even in respect of the last two jamas because one of the jamas, namely, the jama mentioned in schedule (kha) is fictitious and was added solely for the purpose of avoiding the limitation mentioned in Section 29, Ben-gal Tenancy Act, and hence the whole contract must be considered to be void. The learned vakil for the appellant has drawn our attention to some passages in ft ha kabuliyat. Towards the end of the kabuliyat it is said that the aggregate jama recoverable under the kabuliyat is Rs. 52-4-7. He, therefore, argues that all the four jamas must be taken to be amalgamated and formed into one jama of Rs. 52 and odd and that the original total of the rent payable in respect of all the jamas being Rs. 41 and odd there has been an increase of more than two annas in the rupee and, therefore, the plaintiffs two not entitled to maintain the suit oven for a portion of the jama secured by the kabuliyat. We are unable to agree with the construction that is attempted to be put upon the kabuliyat. Reading it as a whole, it appears to us that the jama mentioned in schedule (kha) of Rs. 5 was amalgamated only with the first jama of Rs. 10 and odd mentioned in schedule (ka). The other two jamas were kept separate though they are treated under the same document. The Courts below have decreed the plaintiff's suit in respect of the last jama of Rs. 33 and odd holding that the contract in respect of these jamas was separate from that of any other jama. "We think that the view taken by the Court below is correct and this appeal is dismissed with costs in all the Courts.