Sohobut Ali vs Abdool Ali and Others

Nobody appears for the Respondents in this case, for which we must express our regret. The Plaintiff, who is the Appellant before us, brought this suit for rent against the Defendants, Respondents, on the basis of a kabuliat executed by the Defendants in favour of the original landlord. The Plaintiff appears to be the purchaser of the landlord''s interest. The kabuliat bears date 11th Chaitra 1.233 M. S. corresponding with March 1877. It stipulates for the payment of 41 aris of paddy as the rent of the Defendants'' holding. The Defendants alleged that the rent was not payable in kind, as stated by the Plaintiff, but that they were only liable to pay Rs. 10. The Munsif found that the Defendants were liable to pay 41 aris of paddy per year. He was also of opinion upon the evidence that the sum of Rs. 10, which was entered in the registered kabuliat, was so entered at the time of registration at the suggestion of the registration officer that some value ought to he put upon it, Rs. 10 being supposed to represent the market value at that time of the dhan payable for rent. Since that date the Defendants have always paid Rs. 10 as the price of the dhan payable by them for rent, and they have produced a number of receipts shewing that, although 41 aris was payable by way of rent, Rs. 10 was actually paid as the price thereof. In other words, the landlord accepted Rs. 10 as representing the market value at the time of the dhan, which was received from the Defendants as rent. There seems to be a dispute now between the Plaintiff, landlord, and the Defendants on the question of rent, and hence this suit is brought on the basis of the rent in kind.

As has been already stated, the Munsif found that the Defendants were liable to pay to the Plaintiff 41 aris of dhan, or its market value at the time when the suit was brought, and he accordingly made a decree for the price of the dhan for four years, which came to Rs. 49-4-6; and, adding damages at Rs. 25 per cent., he gave a decree to the Plaintiff for Rs. 61-9-6 with costs on that amount.

On appeal by the Defendants, the learned Judge thought that as the rent has always been paid at the rate of Rs. 10 in cash and has never been paid in kind, whatever the terms of the original contract, the payment of Rs. 10 for 16 years shews that to be the present contract. We regret we cannot agree with that view. The contract between the parties is embodied in the registered kabuliat under which the Defendants hold the land, and if that contract is varied or put aside, it might not eventually be to the advantage of the Defendants themselves, and if that is the contract under which the tenure is held, we must sec what under the contract the rent was. Now, looking at the kabuliat, it is perfectly clear that the Defendants agreed to pay 41 aris of dhan as the rent of their holding. For the sake of convenience, or to meet the requirements of law, Rs. 10 was put down as the value of that dhan, and whether from indulgence, or for any other reason, the landlord chose to accept Rs. 10 for a number of years as representing the price of the 41 aris. The landlord now chooses to insist upon the enforcement of the contract under which the Defendants hold their land, and we do not think we should be justified, merely on the ground that for 16 years the Defendants have been paying only Rs. 10, in supposing that the original contract has been altered or varied. We accordingly think that the view taken by the Munsif is correct, and we, therefore, set aside the judgment of the learned Judge and restore that of the Munsif; but, under the circumstances of the case, we give no costs in this Court, or in the lower Appellate Court.