- (1.)The plaintiff as usufructuary mortgagee from the mulgar of the plaint land has instituted this suit to recover arrears of mulgeni rent and for possession of the land on the ground that the defendants who are the mulgeni tenants have incurred forfeiture by non-paymen of rent and by alienation contrary to the terms of the lease. The forfeiture on the ground of alienation is not pressed before me.
(2.)Mr. Adiga for the plaintiff-appellant has argued three points: (1) that the lower Courts ought to have decreed to him rent at the rate of Rs. 27 instead of at Rs. 20-4-0; (2) that as usufructuary mortgagee he will be entitled to enforce the forfeiture clause in the lease; and (3) that if it be held that the defendants are entitled to be relieved against the forfeiture, he must be paid the rent for the year 1921 which has been disallowed to him on the ground that the claim in respect thereof is barred by limitation.
(3.)The first point arises in this way. Exhibit A is the mulgeni chit executed by the ancestors of the defendants family in favour of the predecessor-in-title of the plaintiff's mortgagor. The document provides that a cash rent of Rs. 20-4-0 has to be paid. The property in the deed has been described as bearing an assessment of Rs. 10. The case for the plaintiff is that long subsequent to the execution of Ex. A, and after the re-settlement in the district there was an oral arrangement come to between the plaintiff's mortgagor and the defendants family that they should pay the enhanced assessment of Rs. 7 imposed at the- re-settlement in addition to the rent of Rs. 20-4-0. Both the lower Courts have disallowed that amount on the ground that it is not open to the plaintiff to rely on this oral agreement as it contravenes the terms of s. 92 of the Evidence Act. The document is silent as to who should pay the assessment. The agreement as to the payment of enhanced assessment would be a term in addition to the terms of the contract and, therefore, evidence relating thereto would come within the prohibition ofs. 92. The payment has been rightly disallowed.