1. The question between the parties in this special appeal is, whether or no the decree passed under Section 52, Beng. Act VIII of 1869, by which the defendant was directed to pay a certain amount as arrears of rent within fifteen days, otherwise he was to be ejected, is good in law.
2. It appears that the Court below has held that the land to which the suit relates consisted of two portions,--one of which is nagdi land, and the other bhaoli land. There was an objection taken in special appeal that the Court below was wrong in treating any of these lands as bhaoli. But we expressed our opinion in the course of the argument yesterday that there was nothing in that objection. No doubt there was evidence that, for some time, the land had been in possession of a person under the present plaintiff, between whom and the defendant the rent was treated as all payable in money: but that could not alter the terms of the tenancy as between the plaintiff' and the defendant, and when that intermediate interest terminated, the land was held partly as bhaoli as before.
3. Then arises the important question in this case, whether the provisions of the law in respect of ejectment upon non-payment of arrears of rent can be applied to bhaoli land. I admit that, on first reading these sections of the Act relating to this matter, I was under the impression that they did refer only to rents reserved in money. But, on further consideration, I think that the construction of the sections is that they cover not only rent reserved in money but rent reserved in kind. Section 52 provides for ejectment for non-payment of arrears of rent. An arrear of rent is defined by Section 21. It says: 'Any instalment of rent which is not paid on or before the day when the same is payable according to the patta or engagement, or if there be no written specification of the time of payment, at or before the time when such instalment is payable according to established usage, shall be held to bo an arrear of rent under this Act, and, unless otherwise provided by written agreement, shall be liable to interest at twelve per centum per annum.' Now the word 'rent' may, undoubtedly, include both rent in kind and rent in money. But the word 'paid' does at first sight suggest rent reserved in money. But when we turn to Section 2, it is clear from that that the Legislature did not use the word 'paid' in reference to rent reserved in money only, because in Section 2 we find the expression if the rent is payable in kind,' thereby clearly showing that the Legislature at any rate considered that the word 'paid' or 'payable' was a proper expression for the proportionate produce which had to be delivered in kind, or a bhaoli tenure. No doubt there are also the words at the end of Section 21 which provide or interest on an arrear of rent. But then 1 think those words may be applied to a case of arrear of rent which is payable in kind, because, as we know, those arrears, though originally reserved in kind, are ultimately, as between the parties, almost always payable in money. There is, therefore, nothing in the words of the law which is inconsistent with the term 'arrears of rent' including arrears of rent in kind as well as arrears of rent in money; and I think the reasonable construction to put upon the Act is, that both kinds of arrears are included. I cannot see any reason why a landlord whose rent is payable in kind should not have the same remedies as a landlord whose rent is payable in money. There being nothing in the Act which is in any way inconsistent with this reasonable construction, I think we ought to put that construction upon it.
4. Then this further objection is raised to this decree by the appellant, that the plaintiff's (respondent's) own jamma-wasil-baki papers show that there had been a full payment of all that was due upon the nagdi portion of the tenure. Now the only evidence before us upon that point is the jamma-wasil-baki paper. No doubt those two tenures are distinct. But then we find in making up the account, following out the custom to which I have already alluded, after the proprietor's share upon the bhaoli portion of the tenure has been ascertained, that is turned into money, and one lump sum is found to be due from the ryot to the landlord. The sum which has boon paid on account is credited not to the nagdi tenure in particular, but the total sum found to be due by adding the two rents together. There is no evidence that the ryot himself appropriated this payment to the nagdi tenure. All that we have is this document, and on this document we are bound to treat it as a general payment on account. On that objection, therefore, the special appeal has failed.
5. Then there is another objection which it is more difficult to get over. It appears that the ryot has, in addition to the original 67 bigas and odd cottas of land, of which the nagdi portion of the tenure consisted, taken into his possession two bigas more. Now, in suing the tenant in respect of the rent of these two bigas, the landlord does not treat these two bigas as an addition to the nagdi tenure held upon the same terms as the rest of the nagdi tenure. He chooses to place on those two bigas rent of Rs. 5, which is more than the rato at which the nagdi tenure is assessed. It is not shown that that rent has ever been paid by the tenant. The suit, therefore, in reality, so far as it relates to these two bigas, is a suit to recover compensation for the use and occupation of those two bigas. And the question then arises whether that can be an arrear of rent to which the provisions of Section 52 can be applied.
6. In order to decide that question, we must, as in deciding the other question upon the construction of the Act, go back to Section 21 and see what an 'arrear of rent' is. That section speaks of an arrear of rent as 'any instalment of rent which is not paid.' Now I do not think it possible to say with regard to those two bigas that there was any instalment of rent which remained unpaid. No doubt there had been for a considerable time something duo from the ryot to the landlord for the occupation of this land, but 1 think the words 'instalment of rent which is not paid' assume a rent which has been fixed, which has become due at the expiry of certain recovering periods, and which had not been paid by the tenant. I think, therefore, it is impossible to say that, as regards those two bigas, there was an arrear of rent duo which remained unpaid when the suit was brought. Although that is a small portion of the tenure in respect of which the suit was brought to recover rent, still, according to the decisions of this Court, that error will vitiate the whole decree. The tenant is to be objected under Section 52 if he does not pay the amount of rent specified in the decree. But the amount specified in the decree must consist entirely of arrears of rent due. And if it turns out that there was not really so much arrears of rent due, the tenant never has had the opportunity, which the law gives him, to pay within fifteen days that which ho is liable to pay as arrears of rent.
7. The result is, that we must set aside the decree of the Court below, and we must make the decree which the Court below ought to have made. There will be a decree as for arrears of rent for the amount found to he due, minus the rent of those two bigas, and for ejectment from all but those two bigas. And if that amount, together with interest and costs in proportion, be paid into Court within fifteen days from the date of the decree, execution of the decree for ejectment will be stayed. There will also be a further decree for the. amount fixed by the Court below in respect of those two bigas; but that being arrear of rent will not be included in the decree which directs the defendant to pay the money into Court. The plaintiff withdrew his claim for ejectment, and a decree was made for the arrears with interest and costs.