GANESH BAKSH SINGH Vs. MATA DIN

JUDGEMENT

(1.) THIS was a suit for arrears of rent. Part of the arrears was claimed at the rate of Rs. 7-8-5 per annum, and the other portion at the rate of Rs. 28-4-8. The suit is by a zamindar against a tenant. It appears that the father of the defendant, who is a minor, was an occupancy tenant. He left the village in time of famine. His son the present defendant returned, sued the sub-tenants in possession and recovered the rent. The plaintiff then sued the defendant and the sub-tenants in occupation for a declaration that he, the zamindar and not the defendant, Mata Din, was entitled to recover the rent from the subtenants. It is to be noted that this suit was brought in a Civil Court and not in the Revenue Court where it ought to have been brought. The suit was compromised by an agreement that Mata Din should remain a tenant and that he should be entitled to cultivate himself or sub-let, but that for the future he was to pay a rent of Rs. 28 odd instead of Rs. 7 odd. A correction was made in the jama-bandi altering the rent from Rs. 7 to Rs. 28, and this correction was made not with standing the objection of the defendant. It has been found that there was no fraud or collusion on the part of the guardian of the defendant in entering into the compromise and so far the merits of the case appear to be with the plaintiff appellant. The compromise was filed and it appears that a decree in the Civil Court was actually made, a decree that allowed the plaintiff's claim for a declaration of his right to collect rent. THIS was clearly a mistake, because it was quite inconsistent with the compromise. The Lower Court has dismissed the plaintiff's claim so far as it claims an enhanced rent on the ground that the rent could only be varied in accordance with the provisions of Section 41 of the Tenancy Act. Section 41 of the Tenancy Act provides that the rent of an occupancy tenant shall be liable to enhancement or abatement only as provided by that Section (i) by a registered agreement and (ii) by a decree or order of a Revenue Court. There is no registered agreement in the present case, nor is there, in my opinion, any decree or order of a Revenue Court. In my opinion the order to correct the jama-bandi is clearly not an order within the meaning of this section. The decree or order there referred to is an order made on an application by the landholder for an enhancement of rent. It is, therefore, clear that if the occupancy-tenancy of the defendant is still subsisting the plaintiff cannot sue for this enhanced rent. The only matter left for consideration is, did the departure of the defendant's father under stress of famine and the subsequent abmbiguous decree, which the plaintiff obtained in a Civil Court, operate to determine the occupancy tenancy? In my opinion it did not. It is clear that there was no relinquishment, because the defendant returned and collected the rent. The plaintiff never obtained a declaration in any court that the occupancy-tenancy was at an end, and I do not think that it would be right to infer such a meaning from the decree he obtained (quite inconsistent as it is with the terms of the compromise). In my opinion the defendant is entitled to the protection of Section 41 of the Tenancy Act and the decree of the Court below is correct. I accordingly dismiss the appeal and allow no costs as the defendant does not appear.