GHAFOOR Vs. ABDULLAH KHAN

JUDGEMENT

(1.) This is a second appeal arising out of a suit for the recovery of arrears of rent for an agricultural holding. The suit was decreed and the defendants are appellants before me. In the year 1919 the defendants who were zamindars mortgaged their proprietary rights and became ex-proprietary tenants of a certain area of sir, i.e., the area in suit. An application was apparently made by the mortgagee to the Revenue Court to fix the rent according to an agreement into which the parties had entered. That agreement was evidenced by a kabuliyat executed by the defendants. The Court wrote an order saying that the nature of the tenancy should be changed and the rent should be entered in accordance with the kabuliat. After 1919 the defendants continued to pay rent at the rate fixed, i.e. at the rate of Rs. 96 a year. Then the suit was instituted which has given rise to this appeal. The defendants in the written statement did not raise the plea that they were not bound to pay rent at the rate fixed but they said that they had discharged their liability by making certain payments. A decree was passed against them. They then made an application for review of judgment upon the ground that certain legal points had been overlooked. This application for review was allowed. There was an appeal against the order allowing it, but that appeal was dismissed upon the ground that no appeal was competent. The Assistant Collector then proceeded to try the suit anew and dismissed it.

(2.) In appeal to the lower appellate Court the suit was decreed. The argument of the defendants was that they were not bound to pay any rent at all for this ex- proprietary holding because no rent had been fixed by the Revenue Court under the provisions of Section 36, Land Revenue Act. The argument is merely this that the form of the order itself shows that the Court which passed the order did not intend to fix a rent but merely directed that the agreement between the parties should be given effect to in the records. We do not know at all whether the Court in 1919 made any enquiry into the amount of rent which ought to have been fixed under the provisions of the Tenancy Act in respect of the rents of ex-proprietary holdings. A most careful enquiry may have been made for all we know. It is only the final result which was expressed in the Court's order that the rent fixed should be the rent to which the parties had agreed. It does not necessarily follow because the parties agreed that a certain rent should be paid that therefore that could not possibly have been the rent which the Court itself would have fixed.

(3.) Learned Counsel for the appellants has relied on Har Prasad V/s. Khazan 1920 All 143. It appears to me that that case is authority against him. In that case when the parties appeared before the Revenue Court the ex-proprietary tenant told the Court that he was willing to pay a certain rent and the Court accordingly directed that that was the rent to be fixed upon the holding. In that case it appears that the record of the proceeding's was before the Courts who were dealing with the suit for arrears of rent and there was nothing upon that record to show that there was any other enquiry made by the officer who fixed the rent. Even then it was held that the rent having been fixed by the Revenue Court, it was not open to the tenant in a subsequent suit for arrears of rent to say he was not liable for payment upon the ground that the rent was in excess of that which should have been fixed under the provisions of the Tenancy Act.