ISAB Vs. GURU CHARAN SHAHA

JUDGEMENT

(1.) THIS appeal arises out of a suit for arrears of rent. The suit has been decreed by both the Courts below. The defendant has then preferred this second appeal. In support of the appeal two contentions have been urged. The first one is to the effect that the question as to whether the relationship of landlord and tenant exists between the plaintiff and the defendant has not been properly determined by the learned Subordinate Judge on appeal. It is said that although he has found that there was a kabuliat under which the rent in the present suit was claimed it has not been found whether the kabuliat was actually acted upon or not. Now this argument as far as I can understand it, really means that it was the defendant's case that the kabuliat although executed was not intended to be acted upon; because the mere fact that the defendant has not paid any rent after the execution, of the kabuliat does not go to show that the kabuliat has not been acted upon or indeed would absolve the defendent from his liability to pay rent under, the kabuliat. So far as this matter is concerned all that the defendant has been able to prove is that the rent has not been realised under the kabuliat since its execution. On the other hand the learned Subordinate Judge refers to certain facts as indicating plainly that the kabuliat was intended to be acted upon; for instance he has said that there was a mortgage decree of the value of Rs. 1,500 in plaintiff's favour as against the predecessors of the defendant, that this decree was afterwards settled at the amount of Rs. 1,000 and that the mortgagors, not being able to pay up the decretal amount sold the land to the plaintiff, and after the sale they executed certain kabuliats out of which is the one in the present suit. The learned Subordinate Judge has found that the kobala and the kabuliat were all registered on one and the same date, that is to say, the 10 March 1917, and that after the execution of these documents the execution proceedings were dismissed for non- prosecution and the mortgage decree was never executed by the plaintiff again. All these go to show that the transactions which were represented by the execution of the kabuliat as well as the execution of the kobala were bona fide transactions really intended to be acted upon. Under these circumstances we are unable to uphold the first contention that has been urged on behalf of the appellant.

(2.) IT has been urged in the next place that Section 60, Rent Act, operates as a bar to the passing of the decree in the present suit. Now this objection does not appear to have been taken in the written statement and although a question or two may have been put to the plaintiff or his witnesses as to whether his name was registered or not, we are not prepared to hold that the Court below were bound to take cognizance of this objection, the more so because if it had been taken in the written statement it would have been open to the plaintiff to get his name registered before the decree was passed even if he had not done so before the suit. This contention also should be overruled. The appeal in our opinion fails and must be dismissed with costs.