BROJESWAR BANERJEE Vs. SYAMA CHARAN MANDAL

JUDGEMENT

(1.) This appeal arises out of a suit for rent. The plaintiffs claim rent at the highest prevailing rate in accordance with the terms of a kabuhyat executed by the defendants. The defendant No. 1 filed a written statement, denying among other things that the quantity of land for which rent was claimed was correctly stated in the plaint and also denying the correctness of the rate of rent prevailing in the locality. When the case came on for hearing the defendants were found absent. Evidence was taken ex parte and after considering the report of a Commissioner who was appointed to measure the land, an ex parte decree was made in favour of the plaintiffs.

(2.) The defendant No. 1 appealed against the decree of the first Court and the learned Subordinate Judge on appeal modified the decree of the first Court. In the first place he held that the highest prevailing rate was not proved and accordingly he decreed rent at the rate of Rs. 1-12 0 per bigha which was the original rent reserved in the kabuliyat. As regards the quantity of land upon which rent was assessable, the lower Appellate Court held that certain embankments should be excluded.

(3.) Three points have been raised in appeal before us by the learned Vakil for the plaintiffs appellants. The first is that some of the defendants had compromised the case with the plaintiff and the Court below was wrong in not giving effect to such compromise.