A contract for the change of rent from bhaoli to cash, incorporated in compromise petitions, does not require registration under Sec. 17 of the Registration Act, is supported by consideration, and is presumed to be for all time to come under Sec. 51 of the Bihar Tenancy Act.

K.Ahmad, J.

1. These three appeals arise out of three rent suits instituted by the common plaintiffs, who are the appellants here, against the different tenant-defendants for different holdings. In this Court the case has been argued on the admitted footing that the plaintiffs are the tenants of the holdings in suits and the defendants are the under-raiyats of the same.

2. It appears that the under-raiyats were inducted into these holdings by the plaintiffs sometime before 1939; and till then they had paid, rent to the plaintiffs on the bhaoli basis. But in the year 1939 applications were filed for commutation by the defendants against the plaintiffs. In the course of those proceedings ultimately petitions of compromise between them were filed; and as a result thereof the holdings were commuted on the basis of cash rent as it stated in the compromise petitions which are Exhibits B series-on the record. It is not denied that since the date of that commutation the plaintiffs realised rents from the defendants up to the year 1361 Fasli on the basis of cash rent as agreed upon between the parties. Thereafter, the plaintiffs claimed that the defendants defaulted in payment of rent. Hence the suits for the realisation of arrears for the period from 1362 to 1365 Fasli. Originally, the claim was made on the basis of Nakdi rent alone.

Subsequently, however, the plaintiffs got the relief portions of the plaints amended; and as a, result of that amendment, there was an alternative prayer made that if the Court found that the commutation proceedings were void in law, then a decree for the arrears of rent should be passed on the bhaoli basis. In the two Courts below the main points contested between the parties were two : 1. Whether the plaintiffs were raiyats or tenure-holders and

2. Whether the commutation proceedings were void.

Both the Courts below on these two points have held; (1) that the plaintiffs are raiyats and not tenure-holders and

(2) that the commutation proceedings were void in law as they were hit by the terms of Sec. 40 of the Bihar Tenancy Act.

3. Accordingly, the trial Court decreed the suits on the bhaoli basis. But in appeal that part of the judgment has been reversed and the lower appellate Court has decreed the suits on cash basis. Hence these appeals by the plaintiffs.

4. The lower appellate Court in decreeing the suits on cash basis has placed reliance, firstly, on the compromise petitions, Exhibits B series and also the fact that in between the period from 1346 to 1361 Fasli rents of these holdings were realised on cash basis though sometimes through. Court by means of rent suits and sometimes in the form of direct payment from hand to hand; and secondly also on the principles of res judicata and estoppel.

5. In this Court Mr. Lakshman Sharan Sinha appearing for the defendants-respondents has not supported the judgment under appeal on the footing of res judicata and estoppel and I think rightly. As I have already stated, both the Courts below have concurrently found that the commutation proceedings were void in law; and if that be so, then the decisions given in those proceedings are nullity. Thus the decisions arrived at therein cannot operate as res judicata between the parties, nor can they be relied upon as the basis of any estoppel. This, therefore, disposes of the second ground taken by the lower appellate Court in decreeing the suits on the basis of cash rent. Then comes the first ground, namely, the petitions of compromise, Exhibit B series; and the admitted fact that in between the period from 1346 to 1361 Fasli rents had been accepted by the plaintiffs either through Court or directly on cash basis. They, in the opinion of the lower appellate Court, constitute a clear proof of the fact that the nature of rent as agreed upon by the parties was cash and not bhaoli. Mr. Chatterji appearing for the plaintiffs appellants has challenged this part of the decision given by the lower appellate Court on t