1. This was a suit by the appellant for Rs. 5,7o7, arrears of rent and interest thereon, due on a lease granted by him to the respondent on September 13fch, 1906. The claim is in respect of the years 1314 and 1315 F. and the kharif instalment of 1316F. It was a term of the lease that if the rents stated in the papers handed over to the respondent were found to be less than the actual rents payable by the tenants of the villages the amount payable to the appellant would be reduced accordingly. In his plaint the appellant admitted that the rent should be reduced by a sum of Rs. 55-5-6 per annum. At the hearing, this figure was altered to Rs. 88-7-3 per annum. The respondent claimed a further deduction of Rs. 88 8-9 on this account of which the Court below has allowed Rs. 78.
2. The respondent also claimed to been titled to set-off a sum of Rs. 524-10-9 which amount he said had been collected by the appellant on account of the rents for years preceding 1314F. which had been assigned to the respondent. The Court below has allowed a set-off of Rs. 516 under this head. The respondent pleaded further that he had paid Rs. 3,955 in addition to the sums the receipt of which was admitted by the appellant. The Court below has allowed this plea.
3. In the result, the Couit below found that nothing was due from the, appellant and accordingly dismissed the suit. There were other points in dispute but they have not been brought before us in appeal.
4. The only questions raised in the arguments before us were, whether the respondent is entitled to see-off the sum of Rs. 516 against the appellants' claim, and whether payment of the whole or any part of the sum of Rs. 3,955 by the respondent has been proved.
5. On the question of the set-off we think that Section 193(g) of the Tenancy Act is conclusive. It provides expressly that not set-off shall be allowed in any suit under the Act except a sum due to the defendant on an unsatisfied decree under this Act or under any enactment thereby repealed. On the question of the payments made to the appellant, it is necessary lo refer to several documents before noticing the oral evidence adduced by the respondent.
6. With his plaint, which was filed on May 21st, 1909, the appellant presented a petition in which he prayed that the respondent might be ordered to make an affidavit of documents. It is said that he did this because the respondent had in November 1908 sent the appellant an account for 1314 and 1315 F in which it was stated that respondent had receipts for sums aggregating Rs. 5,325 and a further account in March 1909, for the kharif of 1316F. also a money-order for Rs. 126 on March 19th, 1909, as the balance then due by him. On the appellant's petition the Court issued notice for the 9th June. The respondent filed a list of his documents on the 2nd Jane but the appellant, who was not satisfied with that, applied again on June 2nd, that the documents should be produced and the Court ordered the respondent to produce all his documents on the 7th. On the 5th the respondent asked for time till the 9th and even on the 9th did not produce his documents. When he did produse them ultimately he said that he had lost three receipts for sums aggregating R3. 3,955. He made no attempt to prove this allegation, but he proved that, on May 11th, 1909, he had reported to the Police that he had lost eight receipts for sums aggregating Rs. 1,400 and he produced a witness, named Ibrahim Hossain, who said that respondent had told him at the beginning of May 1909 that he had lost several receipts and suspected that his brother Khairati had carried them off.
7. It is impossible to hold that the respondent has proved the loss of the three receipts for sums aggregating Rs. 3,955, but the respondent is not bound to prove the loss of the receipts; he is entitled to prove the payments by other evidence if he can. The Court below has held that the payment of several sums not admitted by the appellant has been proved by the evidence of witnesses produced by the respondent. The appellant's Counsel have not troubled themselves to challenge all the items the payment of which has been found to be proved by the Court below. They have confined their arguments to eight items, namely:
(1) Rupees 1,500, said to have been paid on 25th June 1908.
(2) Rupees 1,350, said to have been paid on 6th April 1907.
(3) Rupees 1,050, said to have been paid on 21st June 1907.
(4) Rupees 150, said to have been paid on 18th August 1907.
(5) Rupees 4,000, said to have been paid on 16th March 1908.
(6) Rupees 100, said to have been paid on 4th May 1907.
(7) Rupees 200, said to have been paid on 3rd May 1907.
(8) Rupees 200, said to have been paid on 4th December 1907.
8. Two witnesses, Budhu Mal and Behari Lal, were called to prove payment of the first item. Two others, Abul Hasan and Sajjad, were called to prove payment of the fifth item. The payment of the 4th, 6th, 7th and 8th items is supported by one witness in each case and there appears to be no evidence to prove the payment of the 3rd item. It is easy to produce witnesses in this way, and exceedingly difficult to contradict them. We do not propose to examine the statements of the witnesses in detail. There are several circumstances which tend to throw great suspicion on the alleged payments. In the letter which the respondent sent to the appellant with the account of November 1908, it is stated that Rs. 5,325 were paid to the appellant, for which receipts were obtained and all the eight items enumerated above are among those which were said to make up the sum of Rs. 5,325. Yet, not a single receipt has been produced for these items. As already stated, there is evidence that the respondent reported to the Police that he had lost eight receipts for sums aggregating Rs. 1,400, but the respondent bad not explained what items are included in that amount. Stranger still, the respondent on Juno 2nd, 1909, stated in his petition of that date that he had in his possession receipts signed by the appellant for the first three items in the above list, yet he did not produce them with his other documents and at trial said that they had been lost. No evidence whatever ha3 been given that any documents were lost after June 2nd.
9. To crown all this, the respondent abstained from giving evidence himself. He put the appellant into the box but did not ask him a word about the alleged receipts nor did he put any question to appellant's son who was examined as a witness for the respondent. After all the evidence bad been taken, the respondent put in a petition in which he stated that he had said nothing about the loss of the receipts for the first three items in his report to the Police because be was assured by the witness Ibrahim Husain that they would be returned. Ibrahim Husain did not say this when under examination. The only answer to all this which has been given by the respondent is that he sent full accounts to the appellant in November 1908 and March 1809 and the latter did not give him any reply or dispute the accuracy of the accounts. The appellant contends that he was under no obligation to take any notice of the accounts and that, as a matter of fact, he refused to accept the money-order for Rs. 6-2-3 sent at the time of the first account on the ground that he would not accept payment of part only of what was due to him and refused the money-order sent in March 1909, because the amount due for past years had not been paid. The money-order coupons have been produced bearing the endorsements made by the appellant. It is clear that the appellant gave the respondent full notice that he did not accept the respondent's accounts. He was not under any obligation to do more. In view of the extraordinary conduct of the respondent with reference to the receipts, we should be disinclined to accept any but the strongest oral evidence of the payments which are disputed. The oral evidence which has been given entirely fails to satisfy us that the disputed payments were made.
10. For the above reasons, we hold that the respondent is not entitled to set-off against the appellant's claim the sum of Rs. 516 or any other sums on account of collection made by the appellant for years preceding 1314F. and that the respondent has failed to prove the payment of the eight items in the list given above.
11. As it is impossible to follow the accounts made up by the Court below, the case must go back to that Court for a fresh finding as to what is due to the appellant.
12. The Court below will make out a proper account after hearing the parties and submit it to this Court as soon as possible. Farther evidence will not be admitted. On return of the finding, ten days will be allowed for objections.