1. This is an appeal by the defendants in a suit for arrears of rent. The plaintiff claims rent from the defendants at the rate of Rs. 4,794-4-6, annually with cesses and damages in respect of two years (Bhadra 1324 to Bhadra 1326). The defendants resist the claim on the ground, amongst others, that the payments made by them from time to time wiped out the debt. The Subordinate Judge has overruled this contention and decreed the suit in part. On the present appeal the defendants have argued that the Subordinate Judge has not really investigated the points urged in defence.
2. It is admitted that the defendants hold 19 distinct tenancies under the plaintiff and that from time to time they paid to the plaintiff Rs. 61,889 on account of rent and cesses. The defendants urge that this sum has wiped out all the arrears due in respect of all the 19 tenancies held by them. The plaintiff contends, on the other hand, that he has applied the sums paid in satisfaction of the arrears due on the other 18 tenancies, and that, after the balance has been appropriated in partial satisfaction of the arrears due in respect of the tenancy now in suit, a substantial sum is still recoverable.
3. It is not disputed that at the time the alleged payments were made the defendants did not direct how the sums were to be appropriated. Consequently the rule enunciated in Section 60, Contract Act, became applicable. That section is in these terms:
Where the debtor has omitted to intimate and there are no circumstances to indicate, to which debt the payment is to be applied, the creditor may apply it at his own discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to the limitation of suits.
4. When the creditor invokes the aid of this principle, it is incumbent upon him to establish that there was a lawful debt actually due and payable to him from the debtor for the satisfaction of which the sums paid have been applied by him: Cory Bros. & Co. v. Owners of Turkish Steamship Mecca  A.C. 286, Munisami Mudali v. Perumal Mudali  37 M.L.J. 579. The Subordinate Judge was accordingly not correct when he said that the present suit in respect to a different tenancy,' that is, a tenancy different from the 18 tenancies mentioned, 'cannot be converted into an account Suit.' The question whether the sums alleged to have been appropriated by the plaintiff in satisfaction of arrears due on the 18 tenancies had been lawfully applied, must be investigated, before it can be held that the sum credited to the claim now in suit was correctly determined.
5. It may appear at first sight that this is a question free from complexity and obscurity. Unfortunately for the plaintiff, however, there are peculiar circumstances which have placed him in a situation of some embarrassment. It had so happened that in respect of 10 out of 19 tenancies lands accreted by the recession of a public navigable river and the Secretary of State for India in Council took steps for the assessment of the additional land with revenue. This proceeding culminated in an order of 27th April 1914, whereby the Board of Revenue determined, contrary to the contention of the plaintiff, that the crown had a right to assess the land under Act 9, 1847. Thereupon on 27th July 1915, the plaintiff instituted a suit against the Secretary of State for India in Council for declaration that the assessment had been made without jurisdiction, because the lands, which were alleged to be additional lands, were in fact comprised within his permanently settled estate. The plaintiff was successful in the Court of first instance, and on 6th October 1917, the Subordinate Judge made a declaration in his favour that the assessment was ultra vires. There was an appeal to this Court which was heard in the first instance by a Division Bench and ultimately came up for disposal before a Bench of three Judges under Clause 15, Letters Patent : Secretary of State v. Narendra Nath  34 C.L.J. 402. The final decree of that Court was made on 30th August 1920. The result of that decision was that the assessment by the Crown was held to be ultra vires in part : in other words in respect of a portion of the disputed land the Crown was held not competent to assess the land with revenue under Act 9, 1847. It was during the pendency of that litigation that on 23rd December 1919, the plaintiff commenced the present action for recovery of rent of the tenancy now in suit for the years 1917-1919. It has been stated before us that there is no question of accreted lands so far as the present tenancy is concerned.
6. But as we have already explained, in the application of Section 60, Contract Act, to the facts of this litigation, it becomes necessary to consider what was the amount recoverable by the plaintiff from the defendants in respect o the other 18 tenancies. Ten of those tenancies comprised accreted lands. If the assessment made by the Crown is ultra vires in part, the question must consequently arise on what basis is the plaintiff entitled to recover rent from the defendants in respect of the so-called additional land. It has further been urged before us that in the contingency which has happened, if the plaintiff is not entitled to realize rent on the basis of the entries made in the settlement by the Government, he would, in any event, be entitled to rent on the basis of the contract between the parties That is a question which cannot be determined on the materials before us. There is thus no escape from the position that the decree made by the Subordinate Judge in favour of the plaintiff cannot be affirmed because it is based on an assumption which has no t been established and cannot, on the materials before us, be accepted as well founded. That assumption is that the plaintiff has correctly appropriated sums paid by the defendants with regard to his dues in respect of the other tenancies.
7. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remitted to him in order that it may be retried on the lines indicated. Upon retrial the defendants will not be entitled to succeed to the extent of more than the sum at which the present appeal has been valued, namely, Rs. 5,500. The appellants are entitled to their costs in this Court, but-the costs of the trial in the lower Court both before and after remand, will be in the discretion of the lower Court.
8. I agree.