MAHOMMAD HUSAIN CHOUDHURY Vs. KHANA KAZI

JUDGEMENT

(1.) This is a plaintiff landlord's appeal against the decision of the Subordinate Judge of Dacca, dated 9 April, 1925, affirming the decision of the Munsif of Manikgunj, dated 2nd October, 1923. The plaintiff commenced the suit in which this appeal arises for rent and claimed arrears of rent at the rate of Rs. 17-1- 3 1/2 gandas. Defendant No. 2, now respondent, who alone contested the suit pleaded that the rental was Rs. 10 0-15 gandas and that the rent was liable to be suspended on the ground of partial dispossession. So far as the defence of suspension of rent is concerned, both the lower Courts overruled the objection taken by the defendant, but gave effect to the plea that the plaintiff was not entitled to more than Rs. 10-0-15 gandas. The ground on which the defendant rested his defence which had prevailed in both the Courts below that the plaintiff is not entitled to a higher rent than Rs. 10-0-15 gandas. is that the previous compromise decree between the plaintiff and the defendant was in contravention of the provisions of Section 29, Bengal Tenancy Act, and could not be given effect to The facts which have led to this litigation may be shortly stated thus: The lands in respect of which this rent suit has been instituted along with other lands form certain chur lands and they were recorded in the finally published Record of Rights as khas lands in possession of the landlord. But the defendants went on possessing the lands after they had re-formed in situ and claimed them as appertaining to their original holding. In 1919 a Suit was instituted by the present plaintiff for declaration of title to and recovery of possession in respect of certain chur lands including the disputed lands. The suit was compromised between the plaintiff and the defendants. By the compromise the plaintiff admitted that the disputed lands were the defendant's raiyati jote lands with occupancy right and the defendants admitted that the disputed plots and the yearly rent payable for the said plots were correctly specified against the names of the respective tenants-defendants in the schedule to the solenama and with regard to the disputed lands the quantity of which is stated to be 29 bighas odd, the yearly rent was shown to be Rs. 17-1-3 gandas 1 kara. Both the Courts held that this compromise which was made under Order XXIII, Rule 3, Civil Procedure Code, and which was embodied in a decree could not be given effect to as the rental mentioned in the compromise exceeded more than two annas in the rupee, the rental which had previously been paid in respect of these lands, and consequently contravened the provisions of Section 29, Bengal Tenancy Act, as admittedly the disputed lands were raiyati holdings. The Munsif, accordingly, gave a decree to the plaintiff at the rate of Rs. 10 odd. On appeal to the Subordinate Judge, he affirmed the decision of the Munsif. A second appeal has been taken to this Court by the plaintiff and two points have been urged before us by the learned Vakil for the appellant.

(2.) It is argued in the first place that the compromise should be given effect to, even if it contravened the provisions of Section 29, Bengal Tenancy Act, for the compromise decree was binding unless the same was set aside and it was admitted in this case that the compromise decree stands.

(3.) It is argued in the second place that Section 29, Bengal Tenancy Act, has no application, because there was a bona fide dispute prior to the institution of the previous title suit which was settled by the compromise arrived at therein.