MANINDRA CHANDRA NANDI Vs. UPENDRA CHANDRA HAZRA

JUDGEMENT

(1.) The two second appeals, No. 2388 and 2466, of 1906 are appeals against a decision of the District Judge of Murshidabad in suits for arrears of rent. The defendant is sued on the basis of two kabuliats executed by him in favour of the plaintiff on the 18 October 1894, which he now repudiates on the grounds (i) that they were obtained from him by oppression and threats, and(ii) that they are illegal, being contrary to the provisions of Section 29 of the Bengal Tenancy Act.

(2.) Both the lower Courts have found that the kabuliats were not extorted from the defendant by oppression or threats, but were executed voluntarily by him. But the lower Appellate Court has held that the kabuliats are void, being contrary to the provisions of Section 29 of Act VIII of 1885. It has been further held that the fact that the defendant has paid rent at the rate mentioned in the kabuliats for some time is immaterial, and that a decree which the plaintiff obtained against the defendant for the rent, which is the subject of dispute in the suit to which appeal No. 2466 relates, does not make the question of "the rate of rent payable res judicata.

(3.) The plaintiff now appeals. On his behalf it has been urged (i) that the kabuliats are legal, being executed in settlement of disputes which arose between the landlord and the defendant both as to the amount of rent payable and the area of the defendant's holdings; (ii) that the enhancement agreed to in the kabuliats is only the price of the privilege of transferring holdings without the consent of the landlord conferred by the leases; (iii) that the leases are not void, but voidable, and that as the defendant has paid the rents stipulated for in them for many years without objection, he cannot now question them; (iv) that the leases are at least good to the extent of the enhancement allowed by Section 29 of the Act; and (v) that the onus of proving that the plaintiff is entitled to additional rent for additional land has been wrongly thrown on the plaintiff. In appeal No. 2464, there is a further plea that the decree obtained by the plaintiff against the defendant on the 16 January 1905 has the effect of res judicata.