DHANPAT RAI Vs. POORAN

JUDGEMENT

(1.) This was a case in which a landlord zamindar distrained for rent on the basis that the rent was Rs. 114. The tenant has brought this suit in 1923 under Section 142, Tenancy Act 2, 1901 for a declaration that distraint on the basis of a rent of Rs. 114 was illegal, and that the real rent was Rs. 70; that the rent had all along been Rs. 70 and it had never been legally enhanced. The defendant's answer accepted that the rent was originally Rs. 70, but alleged that the defendant had been compelled to sue to eject the tenant, the present plaintiff, and that suit had resulted in a compromise by the terms of which the plaintiff agreed to pay Rs. 114 rents, provided that the zamindar accepted that he had a right of occupancy. The trial Court held that the real rent was Rs. 114 and dismissed the suit. The lower appellate Court allowed the appeal and decreed the suit, holding that the alleged enhancement to Rs. 114 was not in accordance with law. The zamindar defendant has appealed to this Court. On his behalf we wore referred to Section 97, Tenancy Act, and it was alleged that what had in fact occurred in the proceedings in the ejectment suit amounted to the attestation provided for by Section 97. At the first hearing before me alone I was referred to the decision of Mr. Justice Piggott in Dat Prasad Singh V/s. Gopal Ram [l915] 14 A.L.J.R. 57 in, which he had held, on facts which I was unable to distinguish in any material particular from the present, that Section 97 was not applicable. We were then concerned with such form as might be required by law in the attestation. Feeling unable to agree with the view of Mr. Justice Piggott, and further considering that it was undesirable that there should be two different decisions on two sets of facts which were indistinguishable, I referred this case to the present Bench.

(2.) A new point has, however, now been drawn to our attention in the course of the argument by the counsel for the respondent, which found no mention at the first hearing. It is objected now, on behalf of the respondent, that Section 97(1) (b) shows that in the present case Section 97 can have no application. With this contention we are both clearly in agreement. The alleged compromise stipulated that the rent should be understood to be increased from Rs 70 to Rs. 114, an enhancement of Rs. 44. This is in terms a stipulation for a rent exceeding Rs. 100 annually, and the application of Section 97 would thereby be excluded. It is, of course, contended, on behalf of the appellant, that the compromise only concerned the enhancement of Rs. 44, and that, therefore, the application of Section 97 was not barred. But it is clear that the attestation provided for by Section 97 is only a substitute for the registration that is required by Section 47 (a). It is clear that any agreement for the payment of enhanced rent must be by registered instrument, and, as it is clear that the attestation provided for by Section 97 is only an alternative provided in certain cases in place of registration, Section 97(1)(b) must also apply to oases of enhancement; and where the total rent stipulated for, including the enhancement, amounts to more than Rs. 100, then Section 97 can have no application. This point is sufficient to conclude the appeal, and had it been taken at the first hearing there would have been no necessity for this reference.

(3.) The appeal is dismissed with costs. Mukerji, J.