Reaz Ali and others vs Bijoy Prakash Bajpai and another

Rowland, J.—This appeal arises out of a rent suit No. 639 of 1931 of the Court of the 2nd Munsif of Gaya, the decision of which was considered in rent appeal No. 88 of 1933 of the Second Subordinate Judge of Gaya. The claim was for cash rent for the years 1335 to 1338 and the point raised in second appeal is that the finding of the Courts below regarding the rent payable is erroneous due to crror of law.

The Record-of-rights was finally published on 18th June 1916, and in it the holding is shown to comprise survey plot No. 742 with an area of 2.84 acres and rent (including cess) Rs. 15-7-6. On 2nd October 1921 the landlord got a kabuliat executed by Sheikh Reza Ali and Sheikh Rahmat Husain, the latter signing it as guardian of his minor brothers and agreeing to pay rent for the holding at Rs. 31-8-0. The contention is that this was a contract for enhancement of rent at more than As. 2 in the rupee and as such was void under S. 29, Ben. Ten, Act. The Courts below have held that the kabuliyat is not void by reason of S. 29, the Munsif holding that undue influence or coercion was not proved and that S. 29 does not apply to a case where by the agreement a bona fide dispute is settled. The Munsif thinks that there was a bona fide dispute because the recital in the kabuliat itself says that there was a dispute and that the landlords were thinking of bringing a suit in ejectment. The Subordinate Judge on appeal was also of opinion that coercion was not proved and that rent had in fact been realised for some years at the rate mentioned in the kabuliyat. He appears to have attached some importance to the realisation of rent as he says a little later on that though the guardian could not by his act bind Ms minor brothers yet as they subsequently paid rent in accordance with the terms of the kabuliyat they have thereby ratified the agreement. The Subordinate Judge apparently was thinking of the first proviso to S. 29, This proviso enacts that.

Nothing in Cl. (a) shall prevent a landlord from recovering rent at the rate at which it has actually been paid for a continuous period of not leas than three years immediately preceding the period for which the rent is claimed,

Clause (a) is the clause which requires that a contract for enhancement must be in writing and registered. Therefore the effect of the proviso is that such a contract, if otherwise lawful, will not be defeated merely because it is not in writing and registered if rent has been regularly paid in accordance with it. But if the contract is ab initial illegal, that is to say, if it is a contract of a kind prohibited by S. 29 (b), then the proviso does nothing to validate it. Had it been intended that the proviso should avail to validate a contract which is bad under S. 29 (b), the proviso must have referred to CI. (b) as well as Cl. (a). Therefore the reference by the learned Subordinate Judge to the payment of rent in accordance with the kabuliat is beside the point. Whether rent has been realised or not is neither here nor there.

Then the Subordinate Judge considers that the agreement is not inoperative between the parties because there was a bona fide dispute between them which was set at rest by the execution of the kabuliat. There is authority for holding that an agreement by which a bona fide dispute is set at rest is a valid document and does not come within the bar of S. 29 because the new rent exceeds the old rent by more than 2 annas in the rupee. The principle has been held applicable to cases where there is a difference in area between the old holding and the new holding or to cases where there has been an alteration in status. It is difficult to support the contract on the footing of a change in the area when the Record-of-rights which by law is to be presumed to be correct shows the area of the holding of the defendants to be identical with the area of the holding as it stands today. But Mr. S.N. Roy appearing for the respondents has pressed that the kabuliat in fact effected a change in the status of the tenants. From the document it appears that on the tenants paying a salami of Rs. 250 the tenants were to hold the land on cash rent permanently. The word in the document is "doami" and this Mr. Roy says was and is intended to signify that the rent is a permanent rent at a fixed rate and will never be liable to enhancement. Mr. Roy made this as a considered admission on behalf of and on the instruction of his client. Till now there has been no dispute between the parties as to the status of the tenants. Assuming that this alteration in the status of the tenants as to make them raiyats holding at fixed rates there was a consideration which would be taken as making the contract for revised rental a valid contract. The terms of the agreement are terms that would have been very onerous on the tenant unless there had been some improvement in his status to compensate for the substantial cash payment and the increased annual rent. That being so I accept that this was the intention of the contract at the time and on that basis I find that the contract was not in contravention of S. 29, Ben. Ten. Act.

The result, of this finding will be that the appeal must be dismissed with costs. Leave to appeal under the Letters Patent is refused.