SALI BEWA Vs. AJIJUDDIN SHAIKH

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit in which she prayed for a declaration that a kabuliyat executed by her in Baisakh 1316 was void as having bean obtained by undue influence and coercion and also had been in contravention of the provision of Section 29, Bengal Tenancy Act. The plaintiff also prayed that a decree for arrears of rent obtained against her on the basis of the kabuliyat in Bent Suit No. 959 of 1919 be declared fraudulent and void and be set aside. The first Court gave the plaintiff a decree granting the reliefs prayed for. The learned Court of appeal below reversed this decree. The learned Court of appeal below found on the admission of the plaintiff that her story of coercion in connexion with the execution of the kabuliyat was untrue and that the matter ha9 not been pressed in appeal. The only matter which has really been pressed is the question whether or not the kabuliyat offends against the provision of Section 29, Bengal Tenancy Act. As regards the liability of the decree for rent to be set aside it is admitted by the learned advocate appearing for the appellant that he cannot support that contention, as it is based on nothing more than the contention that the kabuliyat is void and that is a question of the merits of the suit for rent. The facts in regard to this kabuliyat are as follows: There was admittedly a tenancy standing in the name of one Gour Biswas, father- in-law of the plaintiff. There is nothing to show how the plaintiff came to possess it but still it is an indisputed fact that she did come to possess it. There was another tenancy with regard to which there was a dispute between the parties. The plaintiff alleged that this other tenancy had also belonged to Gour Biswas and had come to her by succession. The landlord who is the defendant in the suit asserted that that tenancy had belonged to one Raso Bewa and that ha had had that tenancy sold in execution of a decree for rent and had purchased it himself. The plaintiff has admitted in her deposition that there was a dispute between her and the defendant regarding the rights to this second tenancy and she had admitted that in settlement of dispute between her and the defendant she executed the kabuliyat of Baisakh 1316. The grounds on which it is asserted that the kabuliyat offends against the provision of Section 29, Bengal Tenancy Act, is that the rental of the tenancy created by this kabuliyat is made up of two parts : one relating to the tenancy originally held by Gour Biswas and the other relating to the tenancy regarding which there was a-dispute. The plaintiff alleges that the area of the first tenancy was originally 18 bighas and the rental Rs. 12-12-0 and odd. According to the kabuliyat the rental of this portion of the new tenancy was increased to Rs. 54 the area admittedly being 21 bighas at the present time. It has been contended that if the plaintiff's assertion is correct then the-enhancement of rent of even a portion of the new tenancy is a violation of the provision of Section 29, Bengal Tenancy Act, It is urged that the learned Court of appeal below should have entered into the question of the original area and rental of the first tenancy. These contentions are without foundation. The kabuliyat created a new tenancy formed partly of the land comprised in the tenancy which had been held by the plaintiff and partly of the land which could not be found definitely to have been the land held by her as tenant. Unless it could be found definitely that both the tenancies, which together formed the new tenancy, had been held and enjoyed by the person who executed the kabuliyat it could not be said that the enhancement of the rent originally paid for any portion of the land comprised in the tenancy created by the kabuliyat constituted a violation of the provision of Section 29, Bengal Tenancy Act. It is sufficient that it should appear that some further consideration has proceeded from the landlord to justify an addition to the original rent. A new contract was entered into between the parties for the original consideration and for additional consideration and the parties were free to enter into, it on any terms they pleased. There is no violation of the provision of Section 29, Bengal Tenancy Act.

(2.) The appeal, therefore, fails and is dismissed with costs. Cuming, J.

(3.) I agree.