Oldfield and Brodhurst, JJ.
1. This suit has been brought to recover arrears of rent alleged to be due by defendant on some land accreted to the tenure of the defendant. The plaintiff prior to instituting this suit had not recognised any tenancy on the part of the defendant, but treated him as a trespasser; but by a decree of the Civil Court the tenant-right of defendant was established, and this suit has been brought for arrears of rent for 1289 to 1292, a period subsequent to the date of the decree of the Civil Court.
2. No rent, however, was fixed as payable on the land either by private contract or by the Revenue Court, until March 1884, when rent was fixed by the settlement officer under Section 72 of the Revenue Act, and the plaintiff now claims arrears of rent at the rate so fixed. The Lower Appellate Court has dismissed the claim for rent prior to the 1st July 1884, and decreed such as was due subsequently, but without interest, and hence this appeal by the plaintiff. It is contended that there is an implied contract to pay rent, and the Court should allow rent at the rate fixed by the settlement officer, and should not have withheld interest.
3. We are of opinion that the Lower Appellate Court is right to disallow the claim prior to the 1st July 1884.
4. There may be an implied contract on defendant's part to pay rent when he occupied the land, but this Court cannot decree any amount as arrears due until the rent payable has been fixed by a competent Court. The rent was fixed by the settlement officer no doubt, but, under Section 77 of the Revenue Act, the rent so fixed is payable from the 1st July following the date of the order of the settlement officer, and not before. That order cannot be held to have fixed the rent payable for any period prior to the 1st July 1884.
5. We were referred to a decision of the Full Bench of this Court. In that case--Mahadeo Prasad v. Mathura, I. L R., 8 All., ]89,--the question was as to rent payable by an ex-proprietor under Section 7 of the Rent Act, the amount having been fixed on an application under the provisions of Section 14 and Section 95 of the Rent Act, and it was held that the tenant was liable to pay rent so fixed from the date he became a tenant by loss of his proprietary rights, although such date was prior to that of the decree fixing the rent.
6. But there is no provision, such as is found in Section 77 of the Rent Act, by which rent fixed under an application under Section 95 (l) of the Rent Act, shall be payable from a particular date, and in the case of a tenant who becomes a tenant on sir land under Section 7 of the Rent Act, he is by that Section liable to pay rent at a certain rate from the date he looses his proprietary rights and becomes a tenant. It was proper in that case that the rent fixed should be taken to apply to the commencement of the tenancy. That case is therefore distinguishable.
7. But it is contended that the rent fixed by the settlement officer should be presumed to be a fit standard for assessing rent for years prior to the date of the settlement officer's decree.
8. This might be so if the Court before which this suit has been brought had jurisdiction to fix rent.
9. But this case stands thus for the period prior to the 1st July 1884, no rent has been fixed either by private contract or by a competent Court, and until so fixed the plaintiff cannot have a decree for arrears of rent.
10. If in this suit the rent could be determined he might possibly succeed. But it seems to us we have no jurisdiction to fix the rent.
11. The jurisdiction to determine or fix rent payable by a tenant is given exclusively to the Revenue Court, either by order of the settlement officer or by application under Section 95 of the Rent Act.
12. It cannot be done by suit in the Revenue Court, such as this suit is, in which the appeal lies to the Judge or High Court.
13. It is a matter in which these Courts have exclusive jurisdiction, the appeal either from the order of the settlement officer or of the Revenue Court on an application under Section 95 (l) going to the Superior Revenue authorities and not to the Judge and High Court.
14. In support of this view we may refer to Ram Prasad v. Dina Kuar I. L. R., 4 All., 515, and the unreported case referred to in it, S. A. No. 914 of 1879, and Phulahra v. Jeolal Singh I. L. R., 6 All., 52. The plea in regard to interest is valid. The plaintiff is entitled to interest at 1 per cent. permensem on the sum decreed from the date of institution of suit. Decree modified accordingly.
15. The appellant will pay costs of this appeal.