SACHINDRA KUMAR ROY Vs. PURNA CHANDRA PAL

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for rent. The question in controversy between the parties is as to the rate of rent. The plaintiffs claim rent as Rs. 8-5-6. The defendant stated the rent was Rs. 8-2-10. The difference between the parties is a sum of annas 2 and pies 8. It appears that the howla of the defendant was created by a patta dated 29th December 1869. The relevant portions of the patta are in these terms: In respect of the total 2 kanis 3 karas 2 kags 15 tils of land I appoint you howladar by settling the total jama at Rs. 8-5-6 altogether made up of Rs. 8-2-10 per year calculated at the rate of Rs. 4 per kani and 2 annas 8 pies as moltana costs at the rate of 4 pies per rupee.

(2.) The question is whether the 2 annas 8 pies as moltana costs is to be considered part of the rent or as an abwab which is offensive under Section 74, Ben. Ten. Act. In the kistibandi of the patta the instalments are put down thus:

(3.) It is apparent therefore that this small expense of moltana was to be paid along with every instalment. Considering that the document is of old times and the Record of Rights supports the plaintiffs case that the rent is Rs. 8-5-6, in the circumstances of this case the Court of appeal below committed an error in holding that the small sum was an abwab. The appeal is allowed. The decree of the lower appellate Court is reversed and the plaintiffs suit is decreed in full with costs in all the Courts. Leave to appeal is refused.