The judgment establishes that evidence of acts and conduct of parties cannot be used to vary essential terms of a registered lease, and a mere non-realization of rent does not imply permanent abandonment of the right to receive a higher rent.

JUDGMENT

Mitter, J. - This is plaintiff's appeal against the decision of the Additional Subordinate Judge of Noakhali, dated 23rd June 1926, modifying a decision of the Munsif, Lakhipur, dated 25th August 1923. The suit in which this appeal arises was commenced by the plaintiff for recovery of Rs. 57-8-9 as arrears of rent together with cesses and interest for the years 1325 to 1328 B. S. in respect of a holding which the principal defendants hold under the plaintiff. The case of the plaintiff is that the defendant was holding the disputed land at a jama of Es 7-15 a year. He states that the rights between the parties were created by a kabuliyat which was executed on 28th Chaitra 1293, and that the plaintiff did not realize through mistake the jama at the rate Rs. 7-15 a year but realized it at the rate of Rs. 5 a year. The defence of the defendant in substance was that the defendant was holding this jama at a fixed rental of Rs. 5 a year. This defence did not prevail with the Court of first instance and the Munsif decreed in part for the rents of the period in suit at the rate of Rs. 7-15 a year and only varied the amount of interest. An appeal was taken to the Court of the Subordinate Judge of Noakhali and the learned Subordinate Judge held that the plaintiff was entitled to get rent at the rate of Rs. 5 a year. Before the Subordinate Judge it was contended by the defendants, now respondents, that although in the kabuliyat of 28th Chaitra 1293, there was a stipulation that after the Bengali year 1296 rent was to be realized at the rate of Rs. 7-15 a year, rent had been realized at the lower rate of Rs. 5 ever since that date and, consequently, there has been a waiver of the stipulation in the kabuliyat that the fixed rental was to be at the rate of Rs. 7-15 a year. This contention. of the defendant prevailed with the lower appellate Court and the lower appellate Court came to the finding that the explanation given by the plaintiff that the rent at the rate of Rs. 7-15 was not realized through mistake was not an explanation which he would accept and from the fact of non-realization of rent at the rate of Rs. 7-15 the Court of appeal came to the conclusion that there has been a waiver of this stipulation to pay a higher rate and that consequently the plaintiff could not claim rent at that rate. The Court of appeal also held that on the construction of the kabuliyat the defendant was holding a permanent mo-karrari lease under the plaintiff. In other words, the effect of the lower appellate Court's decision is that all the terms of the kabuliyat must be given effect to except the term which referred to the progressive increase of rent up to the limit of Rs. 7-15 which was to be the fixed rental for all times to come after the year 1296. In support of this decision, the lower appellate Court relied on three decisions of this Court in the cases of Beni Madhub Gorani v. Lalmoti Dassi 6 C.W.N. 242 and Kailash Chandra Saha v. Darbaria Sheikh 20 C.W.N. 347 and Manindra Chandra Nandi v. Sm. Durga Sundari Dassya 20 C.W.N. 680.

2. A second appeal has been taken to this Court against this decision of the Subordinate Judge and it has been argued by the learned vakil for the appellant that the decision of the lower appellate Court in so far as it decreed the plaintiff's suit at the reduced rate of Rs. 5 is wrong; firstly, because it was not permissible to the lower appellate Court to rely on the evidence of the acts and conduct of parties for the purpose of varying the terms of the original kabuliyat, and secondly, because in any event the mere fact of non-realization of rent for a large number of years does not necessarily give rise to the legal inference that there has been a waiver of the right to receive a fixed rent of Rs. 7-15 a year after 1296. We think that both these contentions are well-founded and must prevail. The case of Beni Madhub Gorani v. Lalmoti Dassi 6 C.W.N. 242 relied on by the lower appellate Court is obviously distingui