Document Fragment View

Matching Fragments

3. The learned trial Court came to the conclusion that there was a new contract between Mt. Badala and the plaintiff in 1345F. and that the rent was RS. 74-6-0 per year. It also held that the rent for the whole 1347F. at the rate of Rs. 74-6-0 was due and that for 1346F. the instalment of rent which fell due on 15th May 1939 alone amounting to RS. 18-9-6 is within limitation. Accordingly the suit was decreed for RS. 92-15-6 with interest and proportionate costs. Mt. Badala went up in appeal and there the learned lower appellate Court admitted certain additional evidence, namely, khataunis of 1343 and 1344F., to ascertain whether Mt. Badala was right in saying that actually the Revising Officer had reduced the rent to Rs. 52-8-0. This evidence was produced with notice to the counsel of both the parties and without objection from any of them and without any request that an opportunity for producing rebutting evidence may be given. When these documents came before the learned District Judge he considered the evidence and was satisfied that notwithstanding the patta of the new tenancy set up by the plaintiff the defendant Mt. Badala was an old tenant as she had not been ejected in execution of the decree for ejectment obtained by the plaintiff on 2nd June 1936 and that the patta at the most was an agreement for enhancement of rent which enhancement could not be made by the plaintiff. The Court accordingly held that Rs. 52-8- 0 was the rate payable and that Rs. 13-2-0 were payable for 1346F. plus Rs. 2-9-0 interest and RS. 17-8-0 as arrears for 1347F. plus Rs. 2-3-3 as interest thereon. Total RS. 35-6-3 proportionate costs of the trial Court were granted and the appellant was directed to bear the costs of the defendant in the appellate Court.

9. There is no doubt that there is no evidence that Mt. Badala respondent was actually ejected in execution of the decree. Although she remained in possession after the passing of the decree, it cannot be said that she remained so in the same capacity as that in which she held it before the decree. In Mohammad Mehdi v. Barhu, 1941 R. D. 166, it has been held following Kaniz Baqar v. Mt. Lakhraji, 1940 O. W. N. 1014 : (A. I. R. (29) 1941 Oudh 70), that after a decree under Section 61, Oudh Bent Act has been passed against a tenant, the tenant ceases to be tenant from the date of decree of ejectment and becomes a person to whom Section 127, Oudh Rent Act applies. Under that section the person in possession is a trespasser and the landlord has the option either to treat him as a new tenant on a rent to be fixed by the Court or to eject him as a trespasser. This view of the Board of Revenue has again been followed in Ahmad Ali v. Mathura Prasad, 1942 R. D. 476. No authority to the contrary has been shown on behalf of the respondent. I see no reason to take a different view. Mt. Badala the respondent after the passing of the decree of ejectment then became a person governed by Section 127, Oudh Bent Act. Under that section, Mt. Badala ceased to have any of the statutory privileges conferred by the Oudh Rent Act. Accordingly there was nothing in law or in any enactment in force to prevent Mt. Badala from entering into a fresh agreement with the landlord or in agreeing to pay rent irrespective of the provisions relating to enhancement of rent under the Oudh Rent Act. In these circumstances there is no reason to treat the patta of 3rd September 1937 as other than what it professes to be. The rent agreed upon is Rs. 74/6 per year which the plaintiff claimed.