JUDGMENT
Ali Imam, J.
S.A. No. 394 of 1917.
1. The plaintiffs-appellants instituted the suit for a declaration that the annual jama of the land in suit was Rs. 39-4-6, including road cess and public works cess, and that the orders of the survey authorities giving in the Record of Rights the jama at Rs. 20 with cesses may be cancelled. The defendant-respondent resists the suit and contends that the amount of the jama mentioned in the Record of Rights is the correct amount.
2. The plaintiffs-appellants base their claim to the higher jama on the ground that in a previous suit between the’ parties a compromise had bean effected and that the petition of compromise filed in that case contains the clear agreement between the parties that the jama to be paid to the plaintiffs-appellants would be Rs. 39-4-6 with cesses per year. The Munsif who tried this case dismissed the suit. The learned Additional District Judge, who heard the appeal, has delivered a judgment confirming the decision given by the Munsif.
3. There are two grounds on which evidently the suit of the plaintiffs-appellants failed before both the Courts below.
4. The first ground is whether the petition of compromise filed in a previous litigation does not amount to a lease and as such was it not a document that should have been registered under Section 17, Clause (d) of the Registration Act.
5. The second ground taken is that the agreement would be invalid, inasmuch as it was to secure an enhancement of rent contrary to the provisions of Section 29 of the Bengal Tenancy Act.
6. As regards the first point Mr. Jayaswal appearing on behalf of the plaintiff-appellants has contended that the petition of compromise was not a lease and that it amounted to no more than a mere agreement. He has relied for this contention on Panchanan Basu v. Chandi Charan Misra 6 Ind. Cas. 443 : 37 C. 808 : 14 C.W.N. 874. The facts of that case are different from those of the present one. In that case the compromise petition did not amount to a lease within the meaning of Clause (d) of Section 17 of the Registration Act, because it was no more than a mere agreement to create a lease at a future date. This distinction was kept in view when that case was finally decided. In order to understand the compromise petition on which the contention of the plaintiffs-appellants is based, I have had ‘the original read out to me and it seems to me that a proper construction of the intent, the meaning and purpose of that petition can leave no doubt in one’s mind that it was a lease and not an agreement to create a lease in future. In this connection it may also be mentioned that the terms of this petition of compromise were not embodied in the decree that was drawn up in that suit. Therefore, the defect regarding non-registration of this petition of compromise remains insurmountable.. In the circumstances it was rightly rejected as any evidence in this case.
7. With reference to the second ground, learned Counsel contends there is nothing to show that any enhancement within the meaning of Section 29 of the Bengal Tenancy Act has taken place. In this connection the presumptive evidence of the correctness of the Record of Rights must be taken against the plaintiffs-appellants. The lower Appellate Court points out that there was no evidence to rebut the presumption. In the absence of such evidence it is not open to me to hold that the rent of this holding was not that which is contained in the Record of Rights. That being so, the question then is whether there has been an enhancement and whether that enhancement is contrary to the provisions of the Bengal Tenancy Act. Evidently it is far in excess of that which is permitted by the section. The Record of Rights shows that the holding in question is in the occupancy right of the defendant and there is nothing to show that the defendant is not an occupancy raiyat. The enhancement therefore, is illegal. I, therefore, hold that the view taken by the two lower Courts of the two points of law raised before me by the learned Counsel on behalf of the plaintiffs-appellants was the correct view. The appeal is dismissed with costs.
8. The learned Counsel appearing on behalf of the plaintiffs-appellants has asked me to give him at least a modified decree in respect of the rent of the years in suit. His contention is that even if it be held against him, as I have already held, that the rent was Rs. 20 including cesses, he ought to get relief in respect of that. I am -wholly unable to consider this question at the present stage of the hearing of this case. I also notice that no such claim was advanced as a ground in the memorandum of appeal filed in this Court.
S.A. No. 395 of 1917.
9. The plaintiffs-appellants in this case instituted this suit basing their claim to the reliefs contained in the plaint on a kabuliyat alleged to have been executed by the defendant-respondent. The whole basis of the plaintiffs’ case is this document. The lower Appellate Court has declined to place any reliance on this kabuliyat, which is unregistered. The finding of fact, therefore, with regard to the genuineness of the kabuliyat is against the plaintiffs-appellants. One of the grounds taken by the learned Judge in refusing to accept this document as a genuine one is that although there was a previous suit between the parties the plaintiffs had not dared to use this document in evidence, though they have relied on it in this case as the very basis of their suit. As a finding of fact the trying Court also came to the same conclusion and alluded to the fact that this kabuliyat had never been in the previous proceeding between the parties put forward and that for the first time it saw the light of day was in the trial of the present suit.
10. The learned Counsel appearing on behalf of the plaintiffs-appellants has invited me to examine the document in question and drawn my attention to two seals–one of them purports to be of 1912 and the other of 1914. The present suit was instituted in 1915. Evidently, therefore, if these two seals are authentic, the impressions contained therein were impressions that were made before the institution of this suit. It is contended that these two seals represent the seals of Courts that decided the previous proceedings between the parties and that the impressions ought to be sufficient in themselves to establish the error into which on this point both the, lower Courts have fallen. I have looked at these two seals with some case but even accepting that these two are genuine impressions there is nothing before me to satisfy me that these two seals were put down, firstly, by the authorities of the Courts they purport to be seals of, secondly, that they were made at or about the time when they purport to have been made, and thirdly, that they are seals of Courts that tried the previous proceedings between the parties. In the circumstances I am unable to get any help from an examination of the seal impressions that might support the contention of the learned Counsel appearing on behalf of the plaintiffs-appellants. In the course of the address on this point I was invited to look into a certified copy of some deposition that was taken in some of these previous proceedings. It was suggested that if I looked into these copies it would have appeared that the kabuliyat in question had as a matter of fact been used in the trial of proceedings between the parties on previous occasions. I declined to look into this deposition inasmuch as it was not brought on the record in the trial of this case, nor did I feel disposed to allow this deposition to be put in at this stage of the case without the other side having an opportunity of meeting any conclusion that might be deducible from an examination of this document.
11. In the circumstances and in the absence of any other point of law disclosed in the hearing of this second appeal, I have no option but to dismiss it with costs.
12. The learned Counsel appearing on behalf of the plaintiffs-appellants has asked me to give him at least a modified decree in respect of the rent of the years in suit. His contention is that even if it be held against him as I have already held that the rent was Rs. 20 including cesses, he ought to get relief in respect of that For the same reasons as given in Second Appeal No. 394 of 1917 I am unable to allow the plaintiffs-appellants any relief for the admitted rent of the years in suit.