SHIAM LAL Vs. BOHRA RAM CHANDRA

JUDGEMENT

(1.) THIS is a Letters Patent appeal from a judgment of the learned single Judge of this Court dismissing the appeal of the defendants, who are appellants before us under Order 41, Rule 11. The facts are that a suit was brought for arrears of rent in the Revenue Court at the rate of Rs. 115 per annum for 1338-1339 F. The defence was that the amount should be at the rate of Rs. 70 only and that the rent had been paid up. The trial Court found that the rent should be Rs. 70 per annum and that it had not been paid and decreed it on that rate. The plaintiff appealed to the lower appellate Court on the question of what was the rate of rent. The lower appellate Court had before it three pieces of evidence, first, there was in evidence a registered deed of lease by the plaintiff and a counter lease or kabuliyat by the defendants also registered; secondly, that the tenants verified the rent as Rs. 115 per annum before the Sadar Qanungo, thirdly, that the defendants admitted that since that lease on 24 February 1928 they had been paying rent at the enhanced rate of Rs. 115 per annum. On these three grounds the lower appellate Court held as a finding of fact that the rent was Rs. 115 per annum. Objections have been taken in second appeal to the legality of this lease and attention was invited to the fact that in the kabuliyat produced it was endorsed by the defendants that the kabuliyat had been taken by force. No such plea was taken in the written statement nor was an issue framed, as apparently the defendants did not persist in the plea.

(2.) AS regards the legality of the lease the argument made was that under the Tenancy Act the rent of a statutory tenant to which class the defendants previously belonged could only be enhanced to a certain extent under Section 50. But the lease and kabuliyat before us are not apparently one under that section. Under that section at the enhanced rent a statutory tenant would remain a statutory tenant. In the present suit the statutory tenant has given up statutory fights and become a non-occupancy tenant under a perpetual lease. Learned Counsel for respondents stated before us that his clients accepted this perpetual lease and based their claim upon it. The lease contains a provision that there should be no right of ejectment even as against heirs. The statutory tenant therefore obtained a more valuable tenure. The lease was not therefore limited by the provisions of Section 50, and there was nothing illegal in the enhancement of rent from Rs. 70 to Rs. 115 per annum. Learned Counsel alluded to the provisions of the Act, but none of them was shown to us by which the lease would in any way be illegal. We think that there are no merits in the Letters Patent appeal as the matter was concluded by the finding of fact of the lower appellate Court and we agree with the learned Single Judge in dismissing the second appeal and we dismiss this Letters Patent appeal with costs.