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Babu Kunj Behary Chaudhury vs Charan Singh And Anr. on 29 January, 1923

Patna High Court
Babu Kunj Behary Chaudhury vs Charan Singh And Anr. on 29 January, 1923
Equivalent citations: 72 Ind Cas 40
Author: Ross
Bench: Ross


JUDGMENT

Ross, J.

1. This is an appeal by the plaintiff against the decree of the Subordinate Judge of Patna, confirming a decision of the Munsif of Bihar, in a suit brorght by the plaintiff for rent. The rate of rent claimed was Rs. 5-4-0 a bigha for 2 bighas 2 kathas and 18 dhurs. This is a part, of the defendants’ original holding of 10 bighas 2 kathas and 18 dhurs falling to the plaintiff’s share on partition which is recorded in the Record of Rights as held at a rental of Rs. 27-13-6. The plaintiff relier for proof of the rate of rent claimed upon a compromise decree passed in Suit No. 49 of 1911. This suit was instituted by the plaintiff for bhowli rent and was compromised on the terms that the rent of the defendants’ holding should be Rs. 5-4–0 a bigha. The Courts below have decreed the suit at the rate of rent admitted by the defence and the plaintiff takes three points on appeal.

2. The first is, that by the compromise there was not an unlawful enhancement of rent; the second is, that as the compromise is embodied in a decree of the Court which has not been set aside, it must be given effect to; and the third is, that the provisions of Section 147-A and of Section 29 do not apply, because the rent of the holding was a produce rent. On the first point reliance was placed on the decisions in Sheok Sohay Panday v. Ram Rachia Roy 18 C. 333 : 9 Ind. Cas. (N.S.) 223 and Nath Singh v. Damri Singh 28 C. 90. These decisions are authorities to show that “an agreement embodied in a kabuliyat to pay a certain amount of rent agreed upon by the parties in settlement of difference between them as to what had been the amount and character of the rent, and to avoid further litigation, is not within Section 29 Clause (b)”. These decisions were distinguished in the later case of Probat Chandra Gangapadhya v. Chirag Ali 33 C. 607 : 4 C.L.J. 320 : 11 C.W.N. 62 where it was held that “the ratio decidendi in these cases was, that there was no certainty as to the initial rents; there were disputes as to what the initial rents were,” and, therefore, the settlement was good. In the present case the rent was recorded in the Record of Rights as a cash rent of Rs. 27-13-6. The learned Vakil for the appellant lays great stress on the fact that there is no express finding by the Courts below that this was the true rent. He says that the plaintiff claimed produce rent; that there was a bona fide dispute which was settled by the compromise. Now, the entry in the Record of Rights must be taken to be correct until it is disproved and the Courts below went on this assumption. It is true that they have not expressly stated that the rent of the holding was a cash-rent, but this is implied in the decisions of both the Courts. The Munsif, after stating that the defence in Suit No. 49 of 1911 was that the rent was a cash-rent, says that the judgment does not show that the agreement was arrived at in bona fide settlement of any dispute. The Subordinate Judge also says that, “it does not appear that the parties were on fighting terms during the Survey operation and that (it was) in order to settle their longstanding bona fide dispute” that they came to terms. He points out that, “the mere statement in the petition that in order to avoid dispute and having regard to the quality of the land and its out-turn the jama of Rs. 44-8-0 was considered to be fair and equitable, will not be considered as sufficient ground for holding that the rent was settled on account of a bona fide dispute.” It is clearly implied in both the judgments that the rent was a cash-rent and that there was no bona fide dispute as to settlement. The Munsif puts it in this way that there was enhancement under the cloak of compromise. If the rent was as stated in the Record of Rights (and it must be taken to have been so until this was disproved) then it necessarily follows that the compromise was not good.

3. As to the second argument, it has been found by both the Courts below that provisions of Section 147-A were not complied with. The result of that is, that the compromise decree is a nullity, as was held in Surjug Satan Lal v. Dukhit Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496, and no effect can be given to it. The fact that the rate of rent recorded in the compromise was also recorded in the partition proceedings, which is relied upon as showing that the compromise was acted upon, can make no difference. The rate of the rent is now in dispute and unless it is on a legal basis the plaintiff cannot get a decree at the rate claimed.

4. As to the last point, that Sections 147-A and 29 do not apply, this rests on the assumption that the rent was bhowli If the rent was bhowli there can be no question that the whole compromise was good, but it has not been shown that the rent was bhowli and, therefore, this argument is without any substance.

5. The appeal is dismissed with costs.

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