JUDGMENT :- This is a plaintiffs revision directed against the judgment and decree of the learned Civil Judge of Bareilly refusing to enhance the rent, and also disallowing the claim for the recovery of rent at the enhanced rate from a back date.

2. The facts of the case in brief are that the defendant opposite party has been a tenant of the plaintiff applicant for more than 15 years, and the rent previously fixed was at the rate of Rs. 38/- per month. This rent was reduced in 1936 and again in 1938. After the deduction in 1938 the rent was fixed at Rs. 31/- per month with an additional annual payment of Rs. 36/-, the total rent thus being Rs. 34/- per month. On 4-5-1948 the plaintiff gave a notice to the defendant enhancing the rent by 50 per cent. The defendant did not accept this enhancement, but agreed to the enhancement of 25 percent only. The present suit was consequently filed for fixation of rent at Rs. 51/- per month, which would be the rent payable if the enhancement by 50 per cent, were valid. The plaintiff claimed the arrears at the enhanced rate with effect from 18-5-1948, as the enhancement according to the notice, came into effect on this date. The total rent thus due was said to be a sum of Rs. 646/- out of which Rs. 387/8/- had been paid by the defendant, and the balance claimed was a sum of Rs. 258/8/-.

3. The defendant pleaded that he was liable to pay rent at the rate of Rs. 31/- per month only, and the annual Nazrana of Rs. 36/-, was an illegal claim; and that the defendant was ready to enchance the rent by 25 per cent, and he and the plaintiff agreed to this enhancement about the end of February 1949, so that the rent that was payable by the defendant was Rs. 38/12/- per month with effect from the above date. It was further pleaded that Rs. 38/12/- was the agreed rent and it could not be enhanced.

4. The learned Civil Judge, who tried the suit, held that the rent payable after 1938 was Rs. 34/- per month, as the additional payment of Rs. 36/- a year was also in the nature of rent and there was no illegality in fixing this additional sum to be payable annually. He thus held that the rent payable after 1938 was Rs. 34/- per month. He did not accept the defendants case that there was any agreement between the parties, in February or March 1949, enhancing the rent by 25 per cent, and agreeing to fix it at Rs. 38/12/- per month. His finding on the point is that the plaintiff never agreed to this enhancement of 25 per cent only.

5. The plaintiff had not alleged that the transaction fixing the rent at Rs. 34/- per month was an unfair transaction, and it appears to have been argued by the learned counsel for the defendant that, in the absence of any such allegation and proof, the agreed rent could net be enhanced. The learned Civil Judge accepted this contention of the defendant and held that it was necessary for the plaintiff to allege and prove that the transaction fixing the rent at Rs. 34/- per month was an unfair transaction and, in the absence of any such proof, the plaintiff was not entitled to have the rent enhanced. He then considered the question as to what was the proper rent payable for the shop in question and, after observing that the rent of a similar shop in the vicinity was Rs. 90/- per month, came to the conclusion that, taking into consideration the situation of the shop and other circumstances, the proper rent for the shop was Rs. 51/- per month, as claimed by the plaintiff; but if for some reason this amount was considered to be excessive, then the sum of Rs. 46/12/- per month would not be excessive or inadequate as the rent of the shop. He further held that the notice for enhancement given by the plaintiff in 1948 was invalid, because the plaintiff had no right to enhance the agreed rent to a figure above the annual reasonable rent, and the annual reasonable rent of the shop was Rs. 42/8/- per month. I accept these findings as findings of fact, supported as they are by evidence on the record.

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