JUDGMENT

1. This is an appeal by the defendants in a suit u/s 106 of the Bengal Tenancy Act. In the course of proceedings for the preparation of a Record of Rights under Chapter X of the Bengal Tenancy Act, a dispute arose between the landlord and the tenants as to the amount of rent annually payable by the latter. The landlord relied upon a kabulyat executed by the tenants on the 17th April 1893. The kabulyat on the face of it states that the tenants held a definite quantity of land and that they agreed to pay a specified rent in respect of the land. The tenants contended that the kabulyat had been executed in contravention of the provisions of Section 29 of the Bengal Tenancy Act. To meet this objection, the landlord relied upon an amanat roha, in which it was stated by the tenants that there was no certainty of the actual quantity of land and the amount of rent payable in respect thereof at the time when they executed the kabulyat. The Settlement Officer held that the kabulyat was not binding upon the tenants and made an entry in the Record of Rights in their favour, holding that the rent payable by them was the rent they had paid before the kabulyat was executed. The landlord thereupon instituted the present suit for declaration that the tenants were liable to pay rent on the basis of the kabulyat and for amendment of the Record of Rights. The Settlement Officer dismissed the suit; but upon appeal that decision has been reversed by the Special Judge. In this. Court oh behalf of the tenants it has been, argued that the kabulyat is not binding upon them, and an endeavour has been made to distinguish the decision in Sheo Sahoy v. Ram Rachia, Boy 18 C. 333 and Nath Singh v. Damn Singh 28 C. 90. The Special Judge has found that at the time when the kabulyat was executed, there was a bona fide dispute between the landlord and the tenants as to the quantity of land and the rent payable in respect thereof. On the basis of this finding, he has held that the kabulyat is not affected by the provisions of Section 29 of the Bengal Tenancy Act. In our opinion, the view taken by the second Judge is supported by the decisions mentioned and must be upheld.

2. There is no room for controversy that the case of Nath Singh v. Damri Singh 28 C. 90 is an authority for the proposition that an agreement embodied in a kabulyat to pay a certain amount of rent agreed upon by the parties in settlement of a bona fide dispute regarding the rate of rent and to avoid further litigation, is not an agreement in violation of the terms of Section 29 of the Bengal Tenancy Act. A careful examination of the judgments of the learned Judges who decided that case, has convinced us that this was the proposition they intended to lay down on the authority of the decision in Sheo Sahoy v. Ram Rachya Roy 18 C. 333 With regard to this earlier case, there may be some room for argument that the judgments are possibly ambiguous; there may be a question whether the learned Judges intended to lay down that Section 29 applied only when the intention of both parties was to effect an enhancement. But it is worthy of note that one of the learned Judges who decided the later case was a party to the earlier decision and we must accept his view of what he had intend-ed to decide in concurrence with his colleague in the earlier case. We must take it then that the two decisions mentioned are against the contention of the appellant. There i s the further fact that in the case of Kedar Nath Hazra v. Maharaja Manindra Chandra Nandi 5 Ind. Cas. 309 : 11 C.L.J. 106 to which one member of this Bench was a party, an unsuccessful attempt was made to challenge these two decisions, and although some doubt was expressed whether they gave effect to the true intent of the Legislature in framing Section 29, they were followed, possibly not altogether without hesitation and reluctance. After a careful consideration of the elaborate arguments which have been addressed to us on the present occasion, we