Mullick, J.:— This second appeal arises out of a compromise decree made by the Munsif of Aurangabad in 1913 in a rent suit.
2. The plaintiffs and the defendant in that suit were in dispute about the rent and area of a holding. There was also a dispute as to whether the rent was entirely payable in cash or whether it was payable partly in cash and partly in kind. The result of the compromise was that the plaintiffs agreed to take a lump sum of Rs. 64 on account of the rent of the years 1316 to 1319 F.S, that in respect of future years the rent was fixed at Rs. 78 per year for ever in cash, and that the area of the holding was to be reckoned at 12 bighas.
3. The suit out of which the present appeal arises is in respect of the rent of the years 1321 to 1323 F.S The plaintiffs seek to enforce the compromise and claim Rs. 78 per annum. The defendant denies that the compromise was legal and admits only Rs. 43-2-0 per annum.
4. The District Judge has found that the cadastral survey record stating the rent to be entirely cash and to amount to Rs. 43-2-0 per annum, correctly shows the state of affairs existing immediately before the compromise, and he has declined to admit into evidence the compromise decree on the ground that it related to matters outside the scope of the suit and therefore required registration.
5. The plaintiffs accordingly appeal.
6. Now in their behalf the first ground taken is that the Full Bench decision of this Court in Charu Chandra Mitra v. Sambhu Nath Pandey(1) clearly shows that the learned District Judge was wrong, lit has been held in that case that, where a compromise is effected between a land lord and a tenant varying the terms of the contract previously existing between them in respect of property valued at more than Rs. 100, Section 17 of the Registration Act, does not operate if that compromise is embodied in a decree of Court, even though the compromise creates rights and liabilities extraneous to the suit. The only exception recognized by their Lordships is where the compromise creates a lease requiring registration under the provisions of the Registration Act.
7. Therefore in the present case the view taken by the learned District Judge which, it must be noticed was arrived at before the Full Bench judgment, is incorrect.
8. The learned vakil for the appellants next contends that the compromise was in fact not outside the scope of the suit inasmuch as it purported to settle that the proper rate of rent payable upon the holding was Rs. 78. This contention is not tenable in view of the finding of the District Judge that the rent was Rs. 43-2-0. This is a finding of fact which cannot be assailed in second appeal. Moreover it does not appear from the terms of the compromise decree that there was any adjudication at all as to the rate of rent. The sum of Rs. 64 decreed for the years 1316 to 1319 was a lump sum and there was no adjudication whatever as to the proper rate of rent payable during these or any previous years. The contract to pay a rate of Rs. 78 was clearly foreign to the suit and the argument that the decree relating thereto is res judicata must fail.
9. But the learned vakil for the appellant succeeds on his first point.
10. In reply it is contended on behalf of the defendant-respondent that the compromise is subject to the provisions of Section 147-A of the Ben. Ten Act. That is perfectly true. It is contended that the Full Bench decision, above referred to, related to a compromise recorded under O. 23 of the CPC, which is not applicable to a rent suit. In my opinion there is no force in this argument because the terms of the first part of Section 147-A of the Ben. Ten. Act, are identical with the terms of O. 23, R. 3 of the CPC, and the rule laid down by the Full Bench is of general application.
11. The learned vakil for the respondent next contends that, even if this is so, Section 29 of the Ben. Ten. Act, renders the compromise illegal and invalid. It is contended that the defendant was both before and after the compromise an occupancy raiyat and that, inasmuch as the compromise enhances his rent from Rs. 43-2-0 to Rs. 78, the contract is illegal and incapable of enforcement. This objection would be well grounded if it was in fact true that the status of the defendant had not been changed by the compromise. The learned District Judge however finds that the compromise has changed the defendant from an occupancy raiyat to a raiyat at a fixed rate of rent, so that Section 29 of the Ben. Ten. Act, would not apply to his case. The learned vakil however relies upon the Case of Narendra Bhusan Roy v. Banku Behary Ghosh(2) and contends that the status of the defendant has not in fact changed. For this contention he relies upon that part of the compromise petition which places certain restrictions upon the right of the tenant to build and to excavate tanks.
12. The report of the case on which the learned vakil relies does not put us in complete possession of the facts, but if the learned Judge intended to rule that a tenant cannot become a raiyat at fixed rates if he places restrictions upon himself in the matter of building and making excavations. I would respectfully venture to differ. Reading the report, it would seem that the only point decided was, that in a patta agreeing to let the holding at a certain rent from son to grandson, a restriction as to alienation and other matters was held to justify the construction that it did not create a tenancy at fixed rates. In the present case the document in express words creates a tenancy at a rate of Rs. 78 in perpetuity. The restrictions with regard to excavations and buildings are, in my opinion, not void under any provisions of the Tenancy Act, and I must hold that the defendant is no longer an occupancy raiyat. The compromise therefore does not offend against the terms of Section 29 of the Ben. Ten. Act, and I hold that the Court in accepting it as a basis for the adjustment of the suit acted with jurisdiction.
13. In this connexion it has been somewhat faintly suggested that the Court did not make any investigation into the legality of the compromise. The District Judge has however found that there is nothing to support this suggestion.
14. It is next contended that, even if the provisions of S. 29 were not contravened and the decree was made with jurisdiction, still Section 147-A of the Ben. Ten. Act, does not empower the Court to record a compromise relating to matters extraneous to the suit. In my opinion there is no substantial difference between R. 3, O. 23 of the CPC, and Section 147-A of the Ben. Ten. Act, in regard to the jurisdiction of the Court to record compromises; and the reasons given by the learned District Judge for holding that S. 147-A requires compromises to be confined to the subject-matter of the suit are, in my opinion, inconclusive. There is no reason why the settlement of the disputes forming the subjects matter of the suit should not be regarded as the consideration for the contract relating to matters extraneous to the suit. I see no reason why in a suit for rent for a particular period the parties cannot by consent effect a change of status or rate of rent in regard to future years. The Tenancy Act does not expressly or by implication place any restrictions upon the parties in this respect.
15. Finally the learned vakil for the respondent urges that, even if his other contentions fail, the compromise decree in this case was a lease which is liable to compulsory registration under Cl. (d), Section 17 of the Registration Act. Now we have very carefully read the terms of the compromise petition, and we do not find that it contains any of the ingredients necessary for a lease. No transfer of any interest in land is effected by the document. All that it does is to change the terms of the contract under which the tenant was already holding, and it clearly comes within the category of the documents described in Cls. (b) and (c), Section 17 of the Registration Act.
16. In these circumstances it was open to the plaintiffs to sue upon the compromise and to tender the compromise decree as evidence. The defendant, not having succeeded in rebutting that evidence, must submit to a decree for the full amount of the claim. The suit must therefore be decreed in fall with damages at 25 per cent and costs throughout.
17. Jwala Prasad, J.:— I agree to the order proposed by my learned brother. Although I do not want to commit myself to all the reasons given by him in support of the order made, it is sufficient to decree the appeal on the ground that the learned District Judge was under a misapprehension that the compromise petition, upon the basis of which the plaintiffs sued for a declaration of the rate of rent and for recovery of arrears thereof, was inadmissible without registration and hence could not be given effect to. The said compromise petition was incorporated into the decree of the Court and as such was exempted from registration under sub-Section 2, Clause (vi), Section 17 of the Registration Act, inasmuch as the terms in question in the compromise did not amount to a lease under Cl. (d), sub-S. 1 of the said section, but came under Cls. (b) and (c), sub-S. 1. A decree or order of a Court embodying the terms of an instrument coming under Cl. (b) or CL (c) is exempted from registration. Only gifts under Cl. (a) and leases under Cl. (d), sub-S. 1, are not so exempted.
V.S/R.K
18. Appeal decreed.