1. This was a suit under Section 48 of the Agra Tenancy Act (Act 3 of 1926). The plaintiff appellant is an occupancy tenant and the defendant respondent is his zamindar. From 1325-F up to 1333F the plaintiff appellant paid rent at the rate of Rs. 37 per annum. The amount entered in the column of legal demand
in the Khatauni was Rs. 32 while Rs. 5 was entered each year in the column of extra demand.
2. For 1333 and 1334F the plaintiff appellant paid Rs. 32 only. For the Rabi of 1335F he paid Rs. 16 but it is alleged that the defendant respondent credited Rs. 6 only on account of Rabi of 1335F and appropriated the remaining Rs. 10 on account of arrears for 1333-34F. The defendant respondent's case was that the legal rent was Rs. 37. He also pleaded limitation and estoppel, but these points are not in dispute now before me. The trial Court decreed the suit. It held that in the absence of a registered agreement or decree the rate of rent payable within the meaning of Section 47 must be held to be Rs. 32. An appeal was made to the District Judge and he reversed the decree of the trial Court. He held that the rent 'previously payable' within the meaning of Section 47 was Rupees 37. His grounds for this finding were, (1) that for a number of years the plaintiff appellant had been paying rent at the rate of Rs. 37, (2) that the estate accounts showed the demand to be Rs. 37, and (3) that when in any year less than Rs. 37 were paid the deficit was adjusted in the following year. Finally, the District Judge remarked:
The plaintiff has not led any evidence to show that he had specifically demanded that the Rs, 16 which he tendered to the defendant in Rabi 1335F should be credited in respect of the demand for that year and I therefore feel considerable doubt as to whether what actually took place amounted to an exaction within the meaning of Section 48, Tenancy Act. It seems to me that in the circumstances of the case the plaintiff's proper remedy, if any, would have been by a suit for declaration as to the rent payable in respect of the holding under Section 123(c), Tenancy Act.
3. There is on the record a plaint in suit No. 798 of 1925, which has apparently been overlooked by both the Courts below; or, at any rate, no reference has been made to it. In that plaint the present defendant gave the rent of this holding as Rs. 32. Moreover, it is to be noted that in Section 47 the words used are 'previously payable', not 'previously paid'. If, therefore, more rent was in any year exacted from a tenant than was legally payable by him, he would have a right of suit under Section 48 even though he had been previously paying rent in excess of the legal demand. Under Section 50 of the Act it is provided that the rent of an occupancy tenant can be enhanced only by a registered document or by a decree or order of a Revenue Court. It was held by the Board of Revenue in Dina v. Tej Bahadur Singh (1933) 14 LRABR 570, that the rent legally recoverable is that entered in column 8 and that the amounts in the column of 'estra demand' are not legally recoverable. Again, in 'Selected Decision' No. 6 of 1919 it was held by the Board of Revenue that
a variation in the rant or rate of rent actually paid by a tenant does not alter the rent or rate payable unless the variation is made by a registered agreement or a decree.
4. A similar view was taken by this Court in the case of Dat Prasad Singh v. Gopal Ram (1916) 34 IC 234; and again in the case of Yaqub Ali v. Dhan Singh AIR 1924 All 429. In the latter case it was laid down that:
In rent suits in the Revenue Courts agains occupancy tenants the Court must award rent a the rates which are fixed upon the papers, unless these rates are entered erroneously by a clerical mistake.
5. The above were all suits either for arrears of rent or for determination of rent, and counsel for defendant respondent pleades that the same principle does not apply to cases under Section 48. I think that the words 'rent payable' in Section 47 must have the same meaning in a suit under Section 48 as in a suit for arrears of rent or a suit for determination of rent. At the same time it is clear that for a plaintiff to succeed under Section 48 he must prove exaction. As pointed out by the lower appellate Court, the plaintiff appellant in the pre- sent case has led no evidence to prove his allegation of exaction. I therefore agree with the lower appellate Court that no exaction has been proved within the meaning of Section 48, of the Tenancy Act. For this reason I am of opinion that the appeal must be dismissed. It is accordingly dismissed with costs.