CHAUDHRI MUHAMMAD YUNUS ALI KHAN Vs. KAIAN SINGH

JUDGEMENT

(1.) I have come to the conclusion that this appeal must be dismissed. The question really is, whether there is an agreement which the zamindar plaintiff in this case is entitled by law to rely upon for enhancement of rent. This question in the present condition of legislation is by no means easy and is certainly difficult to anybody like myself unfamiliar with the subject-matter. I think that where there is a question of enhancement or abatement of rent the Court has to find the starting point. Now in the case of occupancy tenants the starting point, so far as acquisition of rights is concerned, is Section 11 of the Agra Tenancy Act. For the ascertainment of rent at which they are assessed it is agreed that the starting point is to be found in Sections 34 and 35, which appear to me to cover the whole ground of a case where no actual recorded agreement is in existence. Now taking Section 35 as the starting point in this particular case, it is proved by entries in the revenue papers that the rent actually paid by the defendant at the last Settlement before 1312 Fasli was Rs. 38-2-6. I say the last Settlement before 1312 Fasli, because the actual date has not been given to me. From the date of that Settlement down to 1312 Fasli it must, therefore, be presumed that that was the rent which the tenants had actually paid, and in accordance with Section 35 of the Tenancy Act it was, therefore, the rent presumed by law. From that time it seems to me that the law with regard to occupancy tenants and ex-proprietary tenants is practically the same, that is to say, once rent has been fixed by law it can only be enhanced or abated or determined within the four corners of the legislation itself and if it cannot be done in that way it cannot be done at all. Section 41 of the Tenancy Act says that the rent of an occupancy tenant, that is to say, Rs. 38-2-6 in this particular case shall be liable to enhancement only by registered agreement or by decree or order of a Revenue Court. It is admitted that there is no decree or order of a Revenue Court in the present case. But it was found that there was a verbal agreement which in some way or other was attested before a Kanungo.

(2.) I will assume in every possible way so as to make it equivalent to a registered agreement within the meaning of Section 41, if it could be done. The question on which this appeal really turns is, whether such an agreement comes within the Act. Now although Section 41 says that it can only be done by a registered agreement, Section 97 in a limited number of cases says that it may in lieu of registration be rendered just as valid as if it had been registered, by complying with the formalities of that section. Mr. Gokul Prasad tells me that that is a provision for the benefit of parties who do not in small cases want to incur expenses of registration and I dare say that that is so. But taking Section 97 as a whole and particularly finding the word instrument " in Sub-section (3) used to describe an agreement, I have no hesitation in holding that such agreement must be contained in a written document and that, therefore, although it need not be a registered agreement, it must be a written agreement which through the medium of Section 97 complies with the provisions of Section 41. It is admitted that this agreement was not in writing and that seems to me to put an end to the case of the appellant. The appellant s Counsel told me that the practice of carrying out or attempting to carry out the provisions of Section 97 is, not to put in a written agreement, but to draw up on a slip the details which would be comprised in a written agreement and to hand this slip to the official and get them attested. I am unable to say whether this is the practice or not. All I can say is that this is a kind of practice, if it really exists, which business people adopt in order to save the lawyer s fee and also apparently to save the stamp duty. It is not within the section. This appeal is, therefore, dismissed with costs.