Babu Ramadhin Chaudhury vs Musammat Kumodini Dassi

Thornhill, J.—This is an appeal from the judgment of the District Judge of Monghyr dismissing the appeal from the decree of the lower Court.

The plaintiffs-respondents'' case is that the defendant took a settlement of 2 bighas 17 cottahs of land at an annual Jama of Rs. 8.8.0 under a registered Kabuliat, dated the 28th April 1908. In the Kabuliyat it was stated that after the expiration of the term of five years he won''t retain possession without taking fresh settlement and if he does retain possession, he shall go on paying rent to the Malika at the rate of Rs. 5 per bigha so long as he shall so continue in possession, and to this payment neither he nor his heirs shall have any objection. The term mentioned in the Kabuliat expired in 1320 and the plaintiffs brought a suit to recover two years'' rent, that is, for 1321 and 1322, at the rate of Rs. 5 per bigha.

The chief point for decision is whether the plaintiffs are entitled to recover rent at this rate. For the defence it is stated that the enhanced rate is in the nature of penalty. The plaintiffs rely on the case of Gunput Singh v. Josodhur Singh 20 Ind. Cas. 516; 17 C.L.J. 590. In that case it was stipulated in the Kabuliats "that after the expiration of the term of five years I aha 1 cease to have any right to retain possession; that in case I fail to execute fresh Kabuliats the Malik Zamindars shall have the power to realise rent at Rs. 5 per bigha on the strength of the Kabuliyat and I shall have no objection to this."

It appears to me that the present case and the case referred to above are almost identical so far as the terms of the Kabuliyats are concerned. It remains only to consider whether this decision has been overruled or encroached upon.

In Gobind Mandar v. Banarsi Prosad 21 Ind. Cas. 351; 18 C.L.J. 74 Mookerjee, J., followed the decision of Gunput Singh v. Josodhur Singh 20 Ind. Cas. 516; 17 C.L.J. 590 referred to above, holding an agreement by the tenant that if he held over upon the expiry of the term, he would pay rent at a higher rate than he did during the term, was valid and enforceable. That case was decided on the 26th February 1913 by Mookerjee, J., and Beachcroft, J. The same Hon''ble Judges a few weeks liter formed the Court which heard the case reported as Abdul Aziz v. Karu 21 Ind. Cas. 443; 18 C.L.J. 95 which is relied on by defendant. In his judgment Mookerjee, J., refers to the two former cases and points out that they are clearly distinguishable from the case before them, inasmuch as the lease had been granted for a term at a rant specified and the tenant had agreed that if he continued in occupation after the expiry of the term, he would pay rent thereafter at a rate which was not deemed as the proper consideration for occupation of the land. Such enhancement of rent depended upon "if the tenant claimed an occupancy right in the land or caused a claim to be put up by any other parson." The learned Judges held that the enhancement amounted to a penalty and was consequently not enforceable in law. I think the decision in Gunput Singh v. Josodhur Singh 20 Ind. Cas. 516; 17 C.L.J. 590 above mentioned must govern this case.

With reference to the question of cusses referred to in the lower Appellate Court''s judgment, the defendant''s Vakil has been unable to find any notification to exempt the holding from the operation of the Bengal Tenancy Act, and consequently abandons the point.

The appeal is dismissed with costs.