Mukunda Chandra Sarma Sarkar vs Arpan Ali Sheikh

The Defendant is a tenant of the Plaintiff, and this is a suit to recover from him the entire rent for the years 1297 to 1299 and for 11 months of the year 1300, at the rate of Rs. 96-6 annas per annum. The Defendant stated that his rent was Rs. 78-8 annas, and the question which the Courts had to decide was what was the amount of the annual rent. The Plaintiff filed a kabuliyat given by the Defendant in Sraban 1287, by which he agreed to pay the rent claimed for a period of three years. It appears that when this kabuliyat was presented for registration, the Defendant denied its execution. A suit was afterwards brought to enforce the registration, and this was decided against him. The Munsif held that the fact of the execution of the kabuliyat could not be disputed by the Defendant, and that the kabuliyat proved the rate of rent unless the Defendant proved that the rent had been varied or reduced, or that the kabuliyat was taken by misrepresentation or undue influence; and as he did not prove any of those facts, the Munsif gave a decree against him for the rent claimed. He did not find that the Defendant had ever actually paid the rent mentioned in the kabuliyat. On the contrary, he seems to have found that the Defendant paid the admitted rent amicably at least up to some time in 1298.

The Defendant appealed against this decree, and the Subordinate Judge held, and we think rightly, that the Munsif was wrong in throwing upon the Defendant the burden of proof to the extent he had done. The kabuliyat is, no doubt, evidence of the rent payable, but it is evidence the weight of which must vary according to the circumstances, and the time that has elapsed since its execution. The mere fact that a tenant some time ago gave a kabuliyat for a limited period at a particular rate of rent is not, we think, sufficient in itself to throw upon the Defendant the entire burden of proving what the present rent is, without any evidence on the part of the landlord, that the rent specified in the kabuliyat had ever been realized from him. The Subordinate Judge perhaps went a little too far in saying that the Plaintiff must show by positive evidence that he realized rent from the Defendant at the rate claimed during the years 1294 to 1296. But the effect of his finding is that the Plaintiff had not shown that the contract upon which he relied had over been acted upon. He says :-"If the Plaintiff could show that that contract was acted upon, then the onus would he shifted on the Defendant, otherwise not." Finding, therefore, that the Plaintiff had failed to prove that the rent claimed by him had, notwithstanding the kabuliyat, ever been realized, and that there was no proof that the Defendant had ever paid more than the rent admitted by him, he gave the Plaintiff a decree for that amount of rent. There was no error of law in this. The judgment is not as clear as it might be in the reason given for it; but the effect is what we have stated, and we cannot say that it was wrong in law. The kabuliyat was merely a piece of evidence the weight of which he had to determine. The appeal is dismissed with costs.