MAKHAN LAL SAMADDER Vs. KHAGENDRA NATH CHAKRAVARTY

JUDGEMENT

(1.) This appeal is on behalf of one Makhan Lal Samaddar against the judgment and decree of the Subordinate Judge of Khulna, dated 22 May, 1933. The question involved in the appeal is as to the rate of rent payable by the defendants to the plaintiff. The plaintiff before the year 1924 purchased a Ganti tenure in execution of a rent decree. It is said that thereafter he served a notice under Section 167, Ben. Ten. Act, on the Dar Gantidars, who may conveniently be called the Bachars, and on the predecessors in interest of the defendants before me who wore under tenants of the Bachars. Thereafter Makhan instituted a title suit (No. 16 of 1924) against the Bachars and the present defendants and others in the Court of the Subordinate Judge at Khulna. The basis of his claim was that the defendants of that suit were trespassers. He accordingly claimed recovery of khas possession and wasilaut. The rights of the parties were not adjudicated upon by the Court, as on 11 May 1925 a petition of compromise was filed signed by the plaintiff and some of the defendants.

(2.) The defendants in the present suit were defendants 5 and 6 in that suit. The material terms of the compromise are these: defendant 2, one of the Dar Gantidars, was accepted as such by the plaintiff, but he stipulated to pay rent at an enhanced rate to the plaintiff, viz., at the rate of Rs. 3 per bigha. Para. 8 is relevant for the purpose of the present suit. It is stated that as the rent of defendant 2 is being increased, defendants 5 and 6, the present respondents, and defendants 9 and 10 (we have no concern with them) would pay to defendant 2 an enhanced rent, viz. Rs 3-6-0 per bigha. It is found that the previous rent of the holding which defendants 5 and 6 held under the Bachars with two other persons Jogendra and Nagendra who ought to have been made parties to the aforesaid title suit was at the rate of Rs. 2-6-3 per bigha, that is to say the total rent of the holding was Rs. 44-13-7. As a result of the compromise the rent went up to Rs. 60-12-0 per year, and the enhancement admittedly was more than two annas in the rupee. This compromise was recorded and a compromise decree was passed on 26 May 1935. The terms of the decree are these: "the suit is decreed in terms of compromise against defendants 1 to 11 and 16 and dismissed against the remaining defendants." The solenama filed formed a part of the decree. Later on the plaintiff purchased the interest of the Bachars, and he became the immediate landlord of the defendants before me.

(3.) On the basis of the said decree in title suit No. 16 of 1924, the plaintiff instituted the present suit and wanted to recover rent at the rate of Rs. 60-12-0 per year. The defence is (1) that the suit is not maintainable inasmuch as the heirs of Jogendra and Nagendra have not been impleaded in the suit, and (2) that the plaintiff can get a decree for rent only at the rate of Rs. 44-13-7. per year. The last mentioned defence which raises a very important question of law, is based on the provisions of Section 29, Ben. Ten. Act. The defendants say that inasmuch as the agreement appearing in para. 8 of the petition of compromise filed in the suit of 1924 contravenes the provisions of Section 29, Ben. Ten. Act, the plaintiff is not entitled to claim the enhanced rent of Rs. 60-12-0 per year. This defence was given effect to by the Courts below. The said Courts held that Section 29 is a bar to the plaintiff's claim and that he is entitled to get rent at the rate of Rupees 44-13-7. On a further finding which is not necessary to consider in this appeal that the tenants were entitled to claim abatement of rent on account of diminution in area the rent was fixed at Rs. 36-13-0 per year. On this basis the plaintiff has been given a decree. The plaintiff has preferred an appeal to this Court and he has contended that the conclusions of the Courts below that Section 29 is a bar to his claim, is erroneous. Mr. Sen who appears on behalf of the respondents supports the judgments of the Courts below and he raises a further point that even if the Courts below have decided this point erroneously, the plaintiff cannot maintain his suit on the basis of the agreement in title suit No. 16/24 inasmuch as all the tenants were not parties to it and the heirs of Nagendra and Jogendra were not made parties to this suit. It will not be necessary to consider this point if my decision is in his favour on the other point.