MOHENDRA NARAYAN ROY CHOWDHURY Vs. PROFULLA KUMAR GUHA

JUDGEMENT

(1.) This appeal has arisen out of a suit for arrears of rent for the holding described in the plaint from the year 1337 to 1340 B. S. at the rate of Rs. 117 per year plus cess at Rs. 16.15- 9 per year with damages at 25 per cent. The defendant claims that the rent payable is Rs. 94 only per year. The suit was decreed in full in both the Courts below. The rent is claimed on the basis of a registered kabuliat, Ex. 1, by which the rent is fixed at Rs. 117. The defendant relies upon certain statements made in a lease and also upon an alleged compromise of a suit by which the landlords agreed to reduce the rent to Rs. 94 on the ground that certain lands included in the lease were not really under the putni but were held by the plaintiff in khas. The terms of the lease relied upon are as follows: That the putni lease was executed relying solely on the words of the lessors as to the title, share, and condition and sthith of the property without making any independent queries on these points, that in case if anything be disclosed afterwards which affects the interest of the lessors as also of the lessees in the property so demised, the lessors are to make good the loss that may be suffered by the lessees owing to such changed circumstances and that if on making necessary verifications the amount of sthith in the putni mehal be found to be less than the amount stated in para. 1 of the putni lease the lessee is to get a refund of the proportionate amount of the selami (consideration for the lease) from the lessors.

(2.) A certified copy of a petition filed in the Second Court of the Munsif at Bhanga, Faridpur, on 15 March 1920, has been filed in which it is stated that the parties, namely the predecessors of the present plaintiffs and the defendant compromised a suit for arrears of rent of the present holding. In this petition of compromise it is stated that Rs. 23 of the rent being unrealizable out of the jama of Rs. 117, by compromise, the parties fixed Rs. 94 as the rent of the putni mehal after deducting this Rs. 23 from the Rs. 117 and the plaintiffs accordingly prayed for a decree at the rate of Rs. 94 annually. The Courts below have failed to give effect to this compromise, which appears to have been acted upon for nine years thereafter in as much as the rent receipts show that rent was paid at Rs. 94 per year from 1920 to 1929, on the ground that being unregistered, it is inadmissible in evidence. In this appeal, it is contended that this com-promise is admissible in evidence. Under Section 107, T.P. Act, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument.

(3.) Clearly in so far as this compromise purports to reduce the rent from Rs. 117 to Rs. 94, it is, in fact, a lease at an altered rate and it requires registration. But it is claimed on behalf of the appellant that it is admissible under Section 49, Registration Act, which lays down that an unregistered document, affecting an immovable property and required by this Act or the Transfer of Property Act to be registered, may be received as evidence of part performance of a contract for the purposes of Section 53- A, T.P. Act. The appellant claims that as the rent was paid at the rate agreed upon in this document for nine years, there was part performance of the contract and the compromise is admissible as evidence of part performance. It can only be admitted as evidence of part performance, if Section 53-A, T.P. Act, is applicable.