Ghose and Harington, JJ.:— This appeal arises out of a suit brought by a certain raiyat, Damri Singh, to set aside a kabuliat bearing date the 17th Magh 1303, corresponding to the 17th January, 1896, executed by him in favour of the landlords, the appellants before us. The grounds upon which the said kabuliat was sought to be set aside were that it was brought about fraudulently by the landlords; that the statements and conditions inserted therein as regards the nagdi rent payable, and the quantity of land for which such rent was payable, were introduced without the plaintiff's knowledge; that he never agreed to pay the rent for the bhaoli land comprised in his holding according to the danabnndi, instead of the batai, system; and that the agreement to pay the rent mentioned in the document was in violation of the provisions of s. 29 of the Bengal Tenancy Act.

The case of the landlords, the defendants, was that there was no fraud in the matter of the execution of the kabuliat in question; that there was good consideration for the agreement that was entered into; and that it was not in violation of the provisions of s. 29 of the Bengal Tenancy Act as urged on behalf of the plaintiff.

The Court of first instance held that there was no fraud in the matter of the execution of the kabuliat; that the raiyat was compelled under pressure of circumstances to agree to the terms thereof with his eyes wide open: and that there was consideration for the agreement that was come to between the parties. At the same time, the Munsif was of opinion that the said agreement was in violation of the provisions of s. 29 of the Bengal Tenancy Act. As regards, however, the bhaoli land, that officer held that the agreement quâ those lands, i.e, to pay rent thereof according to the danabandi system, was binding upon the raiyat; and he accordingly decreed, that with the exception of the stipulation contained in the kabuliat regarding the nagdi rent, the other conditions inserted therein should be held to be binding upon the raiyat.

On appeal on behalf of the defendants, the landlords, the learned Judge of the Court below has affirmed the decree of the Munsif. That officer, in his judgment, in the first instance, refers to a previous suit between the parties, in which suit an issue seems to have been raised as to what the nagdi rent of the raiyat's holding was; and then, referring to the judgment of the District Judge and of the High Court on second appeal in that suit, he has expressed the opinion that it must be held that the question of the rate of rent payable by the plaintiff for the years comprised in that suit was heard and finally decided by the District Judge, and there having been no subsequent change in the rent of the holding, the agreement entered into in the kabuliat of the 17th January, 1896, by which a higher rental was agreed to be paid, was in contravention of s. 29 of the Bengal Tenancy Act. In this view of the matter, he has affirmed the decree of the Munsif, no way interfering with the judgment of that officer as to the agreement regarding the bhaoli lands.

Against this decree, the landlords have preferred the appeal which is now before us.

In dealing with the question raised upon the judgment of the District Judge in this case, it will be necessary in the first place to refer shortly to the previous history of the litigation that took place between the parties.

In the year 1891, the landlords brought a suit for rent in respect of the years 1296, 1297 and 1298 F.S upon a certain doul said to have been executed by the raiyat in the year 1298 F.S The main question, upon which the parties went to trial in that suit was whether this doul was true or not; and there was a further question raised between them whether the raiyat had not paid to the landlords all the rent that was payable by there for the years in question. The issue, as stated in the judgment of the High Court, dated the 15th September, 1894, were:

“First.—What are the quantities of nagdi and bhaoli lands of the defendants?”

“Second.— What amount of nagdi rent is payable by each defendant?”

“Third.—Is the defendants' plea of payment true?”

The Court of first, instance found that the doul was true, and proceeding upon the basis of that finding held that the plaintiffs were entitled to recover the rent claimed, and that the plea of payment raised by the defendants was not made out. On appeal to the higher Court, the District Judge came to a different conclusion. He held that the doul in question was not proved, and that the plea of payment was proved. The learned Judge Mr. Brett, evidently found the receipts produced by the raiyat, and said to have been granted by the landlords, to be true; and he accordingly set aside the decree of the first Court, and dismissed the suit of the landlords altogether. In the course of his judgment, however, he incidentally dealt with the question of the rent payable by the raiyats, but it is rather difficult to say from his judgment whether he meant to come to any determination as to what the proper rent payable by the raiyat was during the years for which the suit was brought. His judgment may be construed in either of two ways. It may be construed as determining that the rent of the holding was as the raiyat alleged to be; and it may also be construed as holding that inasmuch as the landlords had failed to prove the doul, and the rent of the holding was as they alleged it to be, there was nothing else to proceed upon than the admission of the raiyat. And this seems perhaps clear from certain passages in his judgment, to which we now propose to refer.

The learned Judge says: “It is argued that even if the doul rents are not accepted, the plaintiffs could fall back on the rents of the time immediately preceding. But what were they P. There is on the record exhibit 80 which purports to be the road-cess returns for 1292. But in the first place it is not admissible against the defendants. And in the second place it is not proved “Later on, after disposing of the laggits and khasra papers produced by the landlords to show what was the rent between the years 1286 and 1292, when the doul was said to have been executed, he proceeds as follows: There is nothing in this to show that they are the contemporaneous records of actual collections. Therefore it is that I hold that the defendants' allegations of the cash rents they are liable to pay are the only ones that hold the field. Of course, however, what I say refers only to the present suit, and I must not be understood as determining finally what is plaintiffs' rent.”

When the matter came up to this Court on second appeal at the instance of the landlords, the learned Judges who had to deal with the appeal seem to have thought that Mr. Brett ought not to have in his judgment said as he did say, that what he held only referred to the suit then before him, and that he should not be understood as “determining finally” what was the plaintiffs' rent, and that he had no right to determine what effect his judgment would have in another suit. At the same time the learned Judges expressed the opinion that Mr. Brett only meant to determine the actual matter in the suit, viz., whether the rents that were payable for the years in suit were paid. It may well be argued, as indeed it has been argued, that the learned Judges of this Court understood that Mr. Brett did determine what the rent payable was for the years for which the previous suit was brought. But then it will be observed that the learned Judges, after noticing the question as regards the doul upon which the suit was founded, and the judgment of Mr. Brett upon that question, referred to the other question, namely, that of payment as considered by that officer; and the rest of their judgment may well be taken to be a judgment upon that question, and upon that question alone, though no doubt in the course of dealing with it they made contain observations which may betaken as observations applicable to the question of the rent that was payable for the years in question. The result, however, was that the suit of the landlords was dismissed in the Court of the District Judge, and their appeal to this Court was dismissed. They obtained no relief at the hand's of either of the two Appellate Courts.

Shortly afterwards the landlords invoked the assistance of the Revenue authorities in appraising the crops which had grown upon the raiyat's bhaoli land according to the danabandi system and in determining the value of the share thereof as payable to the landlords. The order that was made by the Revenue Courts was an order distinctly adverse to the raiyat. The matter was then brought up in appeal to the higher Revenue authorities, but with no result in favour of the raiyat. The raiyat then brought a civil suit to set aside the decree of the Revenue authority; but that also failed. And when in execution of the decree, which the landlords had obtained in the Revenue Court, the raiyat's lands and his homestead were about to be sold, the parties came to a settlement, as embodied in the pottah and kabuliat of the 17th January, 1896, the one being executed by the landlords and the other by the raiyat. The kabuliat, which is the document now before us, recites the disputes that existed between the parties as regards the rent of the nagai lands, and as to the rule in determining the landlord's share of the produce of the bhaoli lands, and that these disputes have been settled in the manner stated in the document. Among other matters, the raiyat agrees to pay a certain amount of yearly rent of the specified quantity of nagdi lands in his occupation; and also agrees that the danabandi system should be followed in regard to the bhaoli lands.

The first Court, as we have already noticed, held that the raiyat was compelled by force of circumstances to agree to the stipulations contained in the kabuliat executed by him, and that he did so perfectly well knowing what he was about. The learned Judge of the Lower Appellate Court, so far as we can see, does not question the propriety of that conclusion of the Munsif. On the other hand, we find, referring to the judgment of that officer in the case of Gangone Singh, to which he refers in the judgment with which we are immediately concerned, that he was distinctly of opinion that there was no fraud in the matter of the execution of the kabuliat, and to use the learned Judge's own words: “The probabilities are all in favour of the agreement being as stated by the defendants and their witnesses, and I hold that the plea of fraud by the plaintiff cannot be accepted.” That being so, we must take it that there was no fraud in connection with the transaction that was entered into between the landlords and the raiyat.

But then arises the question whether there was any valid consideration for the execution of the kabuliat in question. Now if we were to accept the facts as they have been found by the Munsif—facts which have in no way been negatived by the District Judge—there can, we think, be no doubt that there was consideration for the transaction that was entered into between the parties. And one of the matters that we desire here specially to refer to is, that at the time of this transaction no rent, at any rate in cash, was paid by the raiyat for the years 1299, 1300, 1301 and 1302, which had not evidently up to that time been paid. There was, on the one hand, a claim in favour of the raiyat for the costs which had been awarded to him in the previous suit, and on the other hand there was a large claim in favour of the landlords for the rents of those years, and added to that there was a decree for bhaoli rent which had been found due to the landlords upon the system of danabandi, and for which rent the raiyat's holding and homestead were about to be sold. It is stated in the kabuliat of January 1896 that the rent due to the zamindars was set off against the claim of the raiyat for costs, and that there was some remission made and some money paid in cash. Whether anything was paid in cash or not we do not know, but we may well accept it that there was some remission. And that is the view which the Munsif in this case accepted.

Then referring to what the bone of contention between the parties then was, we find that it was the rent payable by the raiyat for his nagdi lands. The judgment of Mr. Brett was, as it seems to us, such that either view could be taken of it namely, that he meant to determine that the rent really payable for the years for which the previous suit was brought was as the raiyat alleged it to be and it may also be taken that he did not mean so to hold, but that he meant only to proceed upon the admission of the raiyat as to the rent of the land, in deciding the question of payment, and of the rent payable, leaving the question as to the proper amount payable to be determined in a subsequent litigation that might be brought for the purpose. In that view of the matter, it seems to us impossible to say that there was not bond fide dispute between the parties as regard the true rent payable for the nagdi lands in the occupation of the raiyat. If then we are right in taking, as we take it, that there was a bond fide dispute between the parties, and if there were other considerations as detailed in the judgment of the Munsif, to which we have already referred, it was quite open to the parties to settle their differences by the transaction in question; and in this view of the matter the stipulation contained in the kabuliat, that the raiyat should pay a certain rent for a certain quantity of land to the landlords, could not be in violation of the terms of s. 29 of the Bengal Tenancy Act. That section enacts: “The money-rent of an occupancy raiyat may be enhanced by contract, subject to the following conditions; and one of the conditions is—“The rent must not be enhanced so as to exceed by more than two annas in the rupee the rent previously payable by the raiyat.” The question upon this arises, what was the rent previously payable by the raiyat. It will be observed that the previous suit by the landlords for rent was was in respect of the years 1296 to 1298 P.S Since then and up to the year 1303, when the kabuliat was executed there was no payment of rent by the raiyat. The matter was left unsettled between the parties, the landlords apparently insisting that the rent payable by the raiyat was the higher rent, and the raiyat, on the other hand, alleging that it was the lower rent; and if Mr. Brett did not mean to determine finally (for so he says in his judgment) what was the rent truly payable for the years for which the previous suit was brought, it could not be said that the agreement to pay the particular rent entered in the kabuliat was an agreement to pay such enhanced rent as would exceed by more than two annas in the rupee the rent previously payable by the raiyat. In this connection we may refer to the case of Sheo Sahoy Panday v. Ram Rashia Roy decided by a Bench of this Court (Petheram, C.J, and Ghose, J.) where an agreement, which was embodied in a kabuliat, to pay a certain amount, of rent agreed upon by the parties, in settlement of differences between them as to what had been the amount and character of the rent and to avoid further litigation, was held to be not an agreement to enhance rent within the meaning of s. 29 of the Bengal Tenancy Act. The facts of that case are very similar to the facts of the present case; and, following the rule of law laid down in that case, we hold that the stipulation contained, in the kabuliat of the 17th January, 1896 was not in violation of the terms of s. 29 of the Bengal Tenancy Act.

In this view of the matter the result is that the decrees of the Lower Courts should be set aside and the suit dismissed, it being declared that the kabuliat is in every respect binding upon the raiyat. The appellants will recover their costs in this appeal from the respondent, but, so far as the costs in the Courts below are concerned, we think that in the circumstances of this case each party should bear his own costs.

Harington, J.:— I agree that the case of Sheo Sakoy Panday v. Ram Rachia Roy, which has been referred to by my learned brother in his judgment, appears, to be an authority for the proposition that an agreement, embodied in a kabuliat, to pay a certain amount of rent agreed upon by the parties in settlement of differences between them as to what had been the amount of rent payable, and to avoid further litigation, is not an agreement to enhance rent within the meaning of s. 29 of the Bengal Tenancy Act. Now, in this case, the kabuliat, which has been attacked, recites that there has been a dispute between the parties regarding the rate and the amount of rent, and it recites that several cases had been filed in the Collectorate and the Civil Court, and it then states that the tenant agrees to pay the stipulated amount of rent in settlement… of these disputes. Those being the allegations in the kabuliat, it appears to me that the kabuliat is valid on the authority of the case to which I have referred, unless it can be shown that those recitals are untrue, and that no bonâ fide dispute existed between the parties as to the amount and rate of rent to be paid.

Now an action was brought for the purposes of, setting aside the kabuliat, and the plaintiff in the action did not succeed in establishing that the allegations mentioned in the recitals were untrue. It must be taken, therefore, that the allegations stand as true, and in my opinion nothing has been shown in the judgment of Mr. Brett which renders it impossible or even unreasonable that there should have been at the time when this kabuliat was entered into a bonâ fide dispute as to the amount and rate of rent to be paid. It stands, therefore, that the recitals of the considerations are true, and that nothing has been shown in the arguments before us to render the judgments of the Courts below that these recitals were true, open to the charge of resting on a misconstruction of the judgment of Mr. Brett. In these circumstances the kabuliat is not a mere agreement to enhance the rent, but is an agreement to settle banâ fide disputes and differences, and therefore I agree with my learned brother in thinking that it is similar to the agreement which was considered by this Court in the case I have quoted, and therefore is not void under s. 29 of the Bengal Tenancy Act.

For these reasons I agree in the judgment which has been delivered by my learned brother.

B.D.B

Appeal allowed.