LADHURAM MANORMAL MARWADI Vs. SALE MAHOMED ILLIYAS MEMON

JUDGEMENT

(1.) The few facts relating to this second appeal are these. On March 9, 1882, a document which is described as Kararnama, was executed by Kashi Bahiru Patil to Hormasji Burjorji in respect of land which is described as Prat Bandi No. 49, Plot No. 1, measuring three acres and two gunthas, the assessment of the land being Re. 0-15-3. Another document was executed by Hormasji Burjorji on the same day, which is described as a rent-note. It will be sufficient to refer to the terms of this rent-note for the purposes of this appeal. After the description of the land, the document contains the following terms: This rent note is passed in respect of the whole land as such. The rent in respect of the land as is included within the boundaries as mentioned above shall be paid by us from this day every year annually at the rate of Rs. 19 per year immediately on the completion of the respective year and in case there happens to be any default in payment as above, then we shall be paying interest on the overdue sum of rent, at the rate of two per cent, per month. In case we happen to sell to any the buildings standing on that land or if they are given away by way of gift to any one, then you should recover the rent as mentioned above from such person (transferee); you shall not have the right to recover more rent and you should "not take it. We shall go on paying rent as mentioned above as long as we and our heirs make use of the said land abiding by the terms of this Karar; we shall enjoy the buildings and the Agar and the Gardens, etc., in this land in any way we like and if any one sets up his claims against this land, it is you who are to ward off the same and we shall not be caused any trouble in that behalf,

(2.) The tenant Hormasji Burjorji put up a bungalow on this land, and he remained in possession of the land on the terms stated in this document. He transferred his rights to the present plaintiff, and the present defendant claims to be a purchaser from the original owner Kashi Bahiru Patil.

(3.) In about 1915, the Government increased the assessment of this land to Rs. 59-8-6, apparently on the basis of its being a building site. The present defendant filed a suit in the Court of Small Causes to recover the increased assessment for three years from the plaintiff, and the plaintiff filed the present suit in March 1921 for a declaration that Kashi Bahiru Patil or any persons claiming through him had no right to ask for more than Rs. 19 a year as rent for the land in suit. The defendant pleaded that as the assessment was increased, the plaintiff was liable to pay the full amount of the assessment.