JAMIRADDIN Vs. KHADEJANESSA BIBI

JUDGEMENT

(1.) The plaintiffs who are dar-ijaradars of a mahal instituted this suit for recovery of arrears of rent at the rate of Rs. 38 6-6 for the years 1327 to 1330 B.S. for a certain holding. The defendant alleged that the rent was Rs. 26 and was recorded as such in the settlement khatian and that as a result of proceedings under Section 105, Ben. Ten, Act, the said rent was enhanced to Rs. 2910-6 the enhancement operating from 1328. There was also a plea of deduction which, however, was given up The Munsif decreed the suit at the rate of Rs. 38-6-6 for the year 1327 B.S. and at the rate of Rs. 29-10-6 for the years 1328 to 1330 B. S. The Subordinate Judge on appeal by the plaintiffs gave them a decree for all the years at the rate of Es 38-6-6. The defendants have then appealed to this Court.

(2.) The Subordinate Judge has found the following facts : The mahal in which the holding in suit is situate is in the hands of a receiver who lets it out in ijara for terms, and the ijaradar in his turn also sub-lets it in darijara for similar terms, that although there was abundant evidence in the shape of contested decrees, etc., for rent showing that the rent of the holding was Rs. 38-6-6 the darijaradar who preceded the plaintiffs in collusion with the defendants got the rent of the holding to be recorded in the settlement khatian as Rs. 26 and also collusively got a decree for rent passed for the years 1325 and 1326 B.S. at that, rate, that the receiver being ignorant of the real facts took the said rent as recorded in the khatian to be real rent and on the footing of that entry instituted proceedings under Section 105, Ben. Ten. Act, and an order was passed by the Assistant Settlement Officer in the said proceedings allowing enhancement at the rate of 2 annas 3 pies in the rupee and thus the rental was enhanced from Rs. 26 to Rs 29-10-6, the said enhancement to take effect from 1328. Being of opinion that the decision of the Assistant Settlemerit Officer was vitiated by fraud and collusion the learned Subordinate Judge decreed suit at the real rate, namely, of Rs. 38-6-6.

(3.) The contentions urged in support of the appeal are that there was no duty cast upon the defendants to bring the real rate of rent to the notice of the Assistant Settlement Officer who dealt with the proceedings under Section 105, Ben. Ten. Act, and there was no fraud or collusion in those proceedings, that the decision under Sec. 105, Ben. Ten. Act cannot be challenged collaterally in the present suit for rent and that effect must be given to the said decision as contemplated by Section 107, Ben. Ten. Act.