DIWAKARNATH PANDEY AND ORS Vs. KAMTA PROSAD SINGH AND ORS

JUDGEMENT

(1.) The plaintiffs-respondents sued the appellants for rent for the years 1336--1339 Fasli at the rate of Rs. 10 including cesses. The revisional survey khatian shows that the tenants were entitled to muafi at the rate of Rs. 5-2-6 per annum out of the total rent of Rs. 9-15-6. The trial Court accordingly decreed the plaintiff s suit at the rate of Rs. 4-13-0 per annum. In appeal the learned District Judge has decreed the suit at the full rate claimed by the plaintiffs. The defendants have accordingly preferred this second appeal.

(2.) A preliminary objection has been taken by the respondents based on Section 153, Bengal Tenancy Act, but as the question raised by the preliminary objection is the very question which falls for decision in the suit, it is not necessary to deal with it separately. The respondents relied on the decision in Safait Hossain v. Waizuddin AIR 1917 Pat 504 in which it was held that muafi is not rent and that consequently when a question arises in an action as to whether the tenant is entitled to muafi or not, no question is decided in that suit regarding the amount of annual rent so as to prevent the operation of Section 153. In a later decision in Jagdish Misser v. Rameshwar Singh AIR 1920 Pat 212 it was, however, pointed out that if muafi is claimed as an incident of the tenancy then the decision which arises with regard to it in a rent suit is a matter which affects the amount of rent within the meaning of the section. The only reason given by the Appellate Court for holding in this case that the muafi claimed was a mere right of set-off is the assumption that it was a privilege granted to the ancestors of the present tenants for service rendered and that the landlord was not bound to continue the grant of the privilege after rendition of the services had ceased. The learned Court below has referred to no evidence that the muafi in this case was for services rendered, nor is it argued before me that there is such evidence on the record of the case.

(3.) I would, therefore, overrule the preliminary objection and set aside the decree of the Court below and restore that of the first Court. The appellants are entitled to their costs