- (1.) This appeal is on behalf of the plaintiff in a suit for recovery of arrears of rent and for enhancement of rent under Section 30 (6) of the Bengal Tenancy Act. So far as the last mentioned claim is concerned, there is no controversy before me. The controversy is only with regard to the rate of rent of the holding in suit.
(2.) The plaintiff in the plaint as originally filed claimed rent at the rate Rs. 12-15-10 per year in accordance with the entry made in the Record of Rights published under Chap. X of the Bengal Tenancy Act. On August 1, 1930, he amended his plaint. By the amendment he introduced the case that the incidents of the holding was governed by a registered kabuliyat, dated 2nd Assar 1312 executed by the predecessors of the defendants in favour of his predecessor-in-interest wherein there was a stipulation to pay rent at the rate of Rs. 16-11-6 a year. By the amendment ha laid his claim at a rate of Rs. 916-11-6. On September 15, 1930, the defendants filed their additional written statement. In the additional defence they did not plead that the rent was formerly Rs. 16-11-6 but had been varied by any contemporaneous or subsequent oral agreement, but their plea was that the kabuliyat was never intended to be acted upon from the beginning. The Courts below have found that rent had all along been realized at the rate of Rs. 12-15-10, and never at the rate of Rs. 16-11-6, and that the kabuliyat was not intended to be acted upon from the very first and had not in fact been acted upon. In this view of the matter the suit has been decreed at the rate of Rs. 12-15-1.0 per year. The plaintiff appeals and urges that he is entitled to have a decree at the rate of Rs. 16-11-6.
(3.) Mr. Bhattacharjya on behalf of the appellant has contended before me that the defence in substance is that the rent mentioned in the kabuliyat was varied or reduced by an oral agreement, contemporaneous with or subsequent to the execution of the kabuliyat and that no oral evidence is admissible for such purposes. He contended further that even if the defence be taken to be that the kabuliyat was never intended to be acted upon, oral evidence or evidence furnished by conduct is not admissible and the terms of the kabuliyat must be given full force. This is his first contention. He referred to the provisions of Section 92 of the Evidence Act and to the cases of Radha Raman Chaudhury v. Bhawani Prosad Bhoumick 6 CWN 60, Lakhatulla Sheikh v. Bishambhar Ray 12 CLJ 646 : 6 Ind. Cas. 577, Kailash Chandra Saha v. Darbaria Sheikh 29 CWN 317 : 32 Ind. Cas. 251 : AIR 1916 Cal 101, Marnindra Chandra Nandi v. Durga Sundari Dassi 20 CWN 680 : 32 Ind. Cas. 185 : AIR 1917 Cal. 734, Narendra Lal Khan v. Bhola Nath Bhuya 27 CWN 336 : 77 Ind. Cas. 154 : AIR 1923 Cal. 417 and Lakshmi Charan Mazumdar v. Nabadivij) Chandra Pandit . His second contention is that from the mere fact that rent has been realised at the lower rate, an inference that the kabuliyat was not acted upon cannot in law be drawn and to support this proposition he cited the case of Sheikh Isab v. Guru Charan Shaha . I am afraid I cannot accept his contentions and having regard to the finding of the Court of appeal below that the kabuliyat was not intended to be acted upon from the very beginning, I must dismiss the appeal. Some of the cases cited by him, I will indicate hereafter, are distinguishable; there is besides weighty authority against his contention and two of the cases cited by him, namely, Kailash Chandra Saha v. Darbaria Sheikh 29 CWN 317 : 32 Ind. Cas. 251 : AIR 1916 Cal 101 and Manindra Chandra Nandi v. Durga Sundary Dassi 20 CWN 680 : 32 Ind. Cas. 185 : AIR 1917 Cal. 734, are decidedly against his contentions.;