1. The suit which has given rise to this appeal was brought by the respondents to recover from the appellant arrears of rent under a lease granted to him on the 8th of August 1898. The defence to the claim was that in consequence of frost the Government granted a remission of revenue and also of the rents of tenants the amount remitted to the latter being Rs. 633-3-10 and that the defendant was, therefore, entitled to a remission proportionate to that amount. It was also urged that he was entitled to a further remission of two sums, namely Rs. 48-8-0 and Rs. 52-8-8 on account of lands acquired by Government. The defendant is the thikadar of the zemindari and claimed these remissions because as he urged the quantity of land in his possession had been reduced by the acquisitions made by Government and also because the rent of his tenants was remitted by Government.
2. The Court of first instance allowed a deduction of the amounts claimed by the defendant and made a decree for the balance found to be due.
3. On appeal the learned District Judge modified the decree of the Court of first instance and decreed the claim in full. '
4. The defendant has preferred this appeal and the contention on his behalf that he is entitled to a deduction . for the amounts mentioned above. As to the two items of Rs. 48-8-0 and Rs. 52-8-8 the learned Counsel for the respondents concedes that the defendant is equitably entitled to a remission of those items and he consents to such remission being made. As the plaintiffs claimed 3/8ths of the rent reserved by the lease the defendant is entitled to a remission of 3/8ths of the two items mentioned above, which amount to Rs. 101-0-8. He is thus entitled to a deduction of Rs. 37-4-3. As to the item of Rs. 633-3-10 which is the amount of the rent of tenants remitted by Government, we are of opinion, that the defendant is not entitled to any deduction on account of the rents so remitted. Under Section 51 of the Agra Tenancy Act when the Local Government remits or suspends the payment of Government revenue, the Collector or Assistant Collector empowered on that behalf may order the rents of tenants holding immediately or mediately from the proprietor to be remitted. In the present instance the rents of tenants holding mediately from the proprietor appear to have been remitted, but there is nothing to show that the rent of the defendant who is a thikadar and holds immediately from the proprietor was remitted. The learned Judge in his judgment says that no remission of the defendant's rents was granted to him by the Collector. We allowed the appellant an opportunity of showing by the production of the order granting remission that the rent payable by him had also been remitted but he has been unable to produce any such order. We must, therefore, assume as found by the Court below that the rent payable by the defendant was. not remitted.
5. Under these circumstances apart from the conditions of the lease granted to him the defendant is not entitled to any deduction on account of the rent remitted to his tenants by the Government.
6. The result is that the defendant is entitled to a deduction of Rs. 37-14-3 only out of the amount claimed.' We, accordingly, vary the decree of the Court below by reducing the amount decreed by the sum of Rs. 37-14-3 mentioned above and in other respects we affirm the decree of that Court.. As the appeal has substantially failed the appellant must pay the costs of this appeal including fees on the higher scale.