1. These two appeals are by the plaintiffs in two suits for the recovery of arrears of rent of a tenure for two different periods. F.A. NO. 84 of 1941 arises out of the Rent Suit No. 4 of 1939 of the Court of the Subordinate Judge, 24 Parganas for the arrears of the last three Kists of 1342 B.S. by the four sons of the late Sir Charu Chandra Ghosh. F.A. No. 85 of 1941 arises out of the Rent Suit No. 5 of 1939 of the same Court for the arrears of the years 1343, 1344 and 1345 B.S. by the eldest son only as in the meantime by a partition amongst the brothers he alone became the proprietor of the relevant estates. The tenure in question is in respect of the lands of the two Estates bearing Touzi Nos. 1490 and 1491 of the 24 parganas Collectorate. These are temporarily settled estates in the Sunderbans. It appears that these estates were at first settled in perpetuity in 1834 by the Potta NO. 74 of 1st September 1834, corresponding to 17th Bhadra 1241 B.S. Sunderban Grant Rules were revised in 1853. Hitherto increase of revenue had been the paramount object. That principle was now abandoned and speedy reclamation was declared to be the paramount object. Keeping that object in view, the Governor accepted the terms offered by the grantees with two modifications: (1) that conditions of progressive clearance should be insisted on and (2) that the full assessment of 2 annas instead of being in perpetuity should be for 99 years, after which grants should be liable to re-assessment on moderate terms, proprietorship and the right of settlement remaining with the grantees as in estates not permanently settled. It was also decided that the existing grantees would be allowed the option of throwing up their leases and taking fresh leases for 99 years under the new rules, lands already brought under assessment being subjected to the full rate of 2 annas.
2. It appears from Exs. K and K (1) that in 1857 the grantee of the settlement in respect of these estates exercised the option of throwing up the perpetual lease and of taking a fresh lease for 99 years under the Grant Rules of 1853. This period of 99 years was computed from the commencement of the earlier settlement and was thus to end in April 1933. The grantee of this fresh settlement for 99 years was one Nazimuddin Sarkar. By the year 1870 the estate came to be owned by one Mohunt Joyram Gir of Mirzapur. In 1877 the said Joyram Gir granted to one Prankissen Sen a kaemi mourashi tenure of the lands of these estates. The potta granted by Joyram Gir was in English and was executed by him on 13th June 1877. A certified copy of this potta is Ex. N (2) in this case. The kabuliyat by Prankissen was in Urdu and was executed by him on 2nd October 1877. The kabuliyat is Ex. 1 in this case. Its English transliteration is Ex. P. We got the document translated into English by the Court translator. Both these documents were registered on 9th October 1877. By successive transfers the late Sir Chandra Madhab Ghose became the holder of this tenure by 1900. The present defendants are some of the descendants of the late Sir Chandra Madhab Ghose who got this tenure on partition amongst his several heirs. The estates also changed hands and by successive transfers they came to be owned by the late Sir Charu Chandra Ghosh sometime in 1908.
3. Settlement operations under part 2 of Chap. 10, Ben. Ten. Act, in respect of these estates took place during 1931-32 and resettlement of the revenue was finally made by 22nd August 1932, for another period of 30 years from 1st April 1933, with Sir Charu Chandra Ghosh. Old revenues of the Estates 1490 and 1491 were Rs. 59-3-8 and Rs. 434-2-8 respectively. The new revenues now became Rs. 428 and Rs. 3734 respectively. In the above proceeding under part 2 of chap. 10, Ben. Ten. Act, the rent of the tenure was settled at Rs. 7660-6-0 with effect from 1st April 1933. This rent was settled by the revenue authorities practically with the consent of the parties and on the basis of the terms of the lease of 1877 as then understood by the parties and by the settlement authorities. The rent thus settled was not challenged by any suit under Section 104-H, Ben. Ten. Act. On the other hand the defendants amicably paid rent at that rate up to Palgoon 1341 B.S.
4. Sir Charu Chandra Ghosh died on 10th September 1934 and the tenure-holders having defaulted in paying the rent, his heirs, the four plaintiffs in the present Rent Suit No. 4 of 1939, instituted the Rent Suit No. 1 of 1936 in the third Court of the Subordinate Judge at 24 Parganas for the recovery of the arrears of rent for the period from 1341 B.S. up to 29th poush, 1342 B.S. (14th April 1934 to 14th January 1936). In that suit they claimed the rent at Rs. 7660-6-0 as settled by the revenue authorities under Part 2, Chap. 10, Ben. Ten. Act. The defence inter alia to that claim was that the defendants were not liable to pay the rent settled at the settlement proceeding and that their liability in this respect still remained to be determined by the terms of the lease. Their case was that by the terms of the lease they were liable to pay a fixed rent of Rs. 4500 per annum only. On these pleadings an issue was raised in that suit in the following terms: 'What is the amount of annual rental payable in respect of the Jama claimed to be in arrears?' This was Issue 2 in that suit. The learned Subordinate Judge held: (1) That the law was well-settled and it was this that the settlement proceedings could not be held to have abrogated the rights of the parties to the contract; (2) That on a proper construction of the potta and the kabuliyat the plaintiffs were not entitled to recover rent at more than what was stipulated in the potta and the kabuliyat, i.e., at more than Rs. 4500 a year.
5. In support of his first proposition the learned Subordinate Judge relied on Priyanath Das v. Ramratan Chatterjee ('03) 30 Cal. 811, Prafullanath Tagore v. T.C. Tweedie ('22) 9 A.I.R. 1922 Cal. 248, Rai Satindranath Chowdhury v. Rai Jatindranath Chowdhury (EX.C) and Sarada Prosad Ghosh v. Profulla Chandra Ghosh : AIR1938Cal188 . This decision of Subordinate Judge was given on 19th April 1937. The plaintiffs thereupon preferred an appeal to this Court. This was F.A. No. 182 of 1937. In this appeal the High Court also held that the re-settlement of rent in 1933 would not affect the contractual rights and obligations of the parties derived from the contract of 1877. As regards the defendants' liability under the terms of the contract the High Court left the question open and maintained the decree at Rs. 4500 only for the period in question in that suit. The decision of the High Court was given on 14th February 1939. It may be noticed here that the views of law taken by the Courts in this case have recently been found to be erroneous by the Judicial Committee in another case, namely, in Kumar Chandra Singh Dudhoria v. Midnapore Zemindary Co., Ltd ('42) 29 A.I.R. 1942 P.C. 8. This decision of the Judicial Committee given on 18th December 1941 has now settled the law in this respect and may be taken to have overruled the decisions referred to above.
6. However that be, after being defeated in the above manner in their claim on the basis of the Cadastral Survey record the plaintiffs instituted the present suits on 17th April 1939 claiming rents at Rs. 8168-9-8 per year, asserting that under the terms of the lease this sum will be the amount of rent annually payable for the tenure. The case of the plaintiffs is that under the terms of the lease, besides the sum of Rs. 4500 named therein, they are entitled to have the excess of the revenue settled at the re-settlement of 1933 over the old revenue. From the figures given above it will appear that this excess is Rs. 3668-9-8. The plaintiffs claim the rent at Rs. 4500 + Rs. 3668-9-8, i.e., at Rs. 8168-9-8 per year or, in the alternative, rent at Rs. 4500 per year and money at Rs. 3668-9-8 per year under the terms of the contract contained in the lease. The defence inter alia is: (1) That on a proper construction of the lease the rent of the tenure is fixed in perpetuity and the fixed rent is Rs. 4500 only per year. (2) That the defendants are not liable to pay any sum on account of the additional revenue assessed in addition to the sum of RS. 4500 as rent. (3) That the defendants are not liable to bear the additional revenue under the terms of the contract contained in the lease. (4) That the defendants are entitled to set off in respect of the excess payment of Rs. 3700 made by them for the period from 29th Magh 1340 to 14th Falgoon 1341 B.S.
7. The principal dispute now is about the terms of the lease of 1877. As has been stated above, the terms of the lease are contained in two documents; namely, the potta in English executed on 13th June 1877 and the kabuliyat in Urdu executed on 2nd October 1877 both registered on 9th October 1877. It seems that the then proprietor of the estate did not know English and hence though he had to execute the potta in English, he took the kabuliyat in Urdu, his own language. In any case the kabuliyat in this case is not a mere counterpart of the potta. The kabuliyat in the main follows the provisions of the potta; but, coming to the liabilities undertaken by the tenant, it contains more. As has been stated above, the potta is Ex. N(2) in this case. Its relevant terms are:
I, of my own free will... grant a perpetual lease for generation after generation ... commencing from Baisakh 1284... to Babu Pran-kissen Sen... on condition of his agreeing to pay as rent in the first year... two thousand and five hundred rupees (Rs. 2500), in the second year... three thousand and five hundred rupees (Rs. 3500) and in the third year... and for all future years a fixed and invariable sum of four thousand and five hundred rupees (Rs. 4500) per annum for ever. In order to secure the payment of the said sum of money, you the said lessee, do cause to be executed security bond hypothecating property to the value of four thousand and five hundred rupees (Rs. 4500) for my satisfaction within a period of three months. I do hereby execute this istimrari potta in your favour on the understanding that out of the said annual rent due to me, you shall pay the Government revenue and road-cess to the Government treasury in accordance with the instalments fixed by the Government and send me the dakhilas and the remainder you shall pay to me by four equal instalments without raising any the least objection as to the occurrence of drought, inundation.... You do make necessary repairs to all the existing drains, bridges, canals and boundary pillars.... You shall bear the costs of and be held responsible for all disputes connected with the boundary pillars and besides the land revenue whatever new cesses will be imposed by Government under any law on the said lots shall be borne by you.... During your incumbence as lessee should any expense of any kind connected with the said lots be incurred by me, you shall make good the same....
8. The relevant portions of the kabuliyat read thus:. So hum muquir balchoshi-o-ri zamundi apni thika istimarari lathai mazkuranka intidai shuru mah Baisakh, 1284--Fasli men mubligh do hazar panch sau rupea o dusre sal... mubligh tin hazar punch sau rupea o tisra sal... o sal hai ainda wastey duami naslan bad naslan ke char hazar pan sau rupea ke buzaria... o iqrar karte hain-o-likhdetey hainke mimjumla zare majura mushar-rehai sadar ke malguzari sarkar-mal-o-sarkanu khazanai sarkari men quist baquist dakhil karke dakhila uska pas Muhantji ke bheja karenge o mabaquia zare majura char quist men baquist musawi bilahi chak... Mohantji ko ada kia karenge... O Kharcha mutalluq ham mudir ke hai aur hoga aur siwai malguzari sarkari muainai hai ke; jo abwab jadid yia malguzari jadid Government se nisbat lathai mazkuran quanunan yia bahukme hukkam waqt quaim hobey adai uska mutalliq hum muqir ke hai-o. Muhantji se kuch wasta nahim. Hum maqir mubligh char hazar panj sau rupea salan brabar husb iqrar-o-aqsat mufassela zail brabar ada kia karenge...
9. The accepted English translation of the kabuliyat renders the relevant portion thus:
Therefore, I, the executant, of my own free will and accord take a perpetual lease of the said lots through my father and under his supervision, commencing from the beginning of the month of Baisakh 1284, Fasli Bengali, upon agreeing to pay malguzari (rent) in the manner following: In the first year, 1284 Fasli, the sum of Rs. 2500--two thousand and five hundred rupees, in the second year, 1285 Fasli, the sum of Rs. 3500--three thousand five hundred rupees, in the third year 1286, Fasli Bengali, and in the succeeding years, in perpetuity, and generation after generation Rs. 4500--four thousand and five hundred rupees and upon agreeing to pay the annual jama (rent) and in order to assure payment of the said annual jama, I shall get a separate and regular deed of security executed by a reliable surety within three months, mortgaging properties worth Rs. 4500 free from encumbrance and liability of any kind to the satisfaction of Mahantji and get the same completed. I further, agree and give in writing that out of the above-mentioned amount of consideration I shall pay the Government revenue and road cess into the Government Treasury, instalment by instalment, and shall always send the Dakbilas thereof to Mahantji. And I shall pay the balance of the consideration to Mahantji in four equal instalments, year by year, without the least excuse of drought, flood etc., and earthly and heavenly calamities... I, the executant, am and shall be responsible for all the suits in respect of the boundaries and limits and shall be liable for the costs thereof. And besides the Government Malguzari (revenue) fixed for the present, I shall be responsible for payment of whatever new Abwab (cesses) or new revenue in respect of the said lots may be fixed by Government according to law or under orders of the officers of the time and Mahantji has nothing to do with the same. I, the executant, shall always pay the sum of rupees four thousand and five hundred regularly every year according to promise and according to the instalments detailed below.... If Mahantji incurs any expense in respect of the said lots during the period of (my) possession and my lease, I, the executant, shall at once pay up the same...
10. It will be pertinent in this connexion to notice how the present parties themselves understood their respective legal positions under these terms of the potta and kabuliyat. In the proceedings under part 2, chap. 10, Ben. Ten. Act, in respect of these estates, Surendranath Ghosh, the predecessor of the present defendants, took objection to the rates of rent proposed to be assessed for the tenure. His petition of objection is Ex. 6 in this case and it is dated 15th April 1932. In this petition, para. 5, he said:
That upon a proper construction of the Potta and Kabuliyat executed before the commencement of the Bengal Tenancy Act of 1885, your petitioners as tenure-holders are entitled to the entire rent payable to the proprietor subject to the payment by them to the said proprietor the stipulated annual rent of Rs. 4500--(rupees four thousand and five hundred only) for the two Estates Nos. 1490 and 1491 of the 24 Parganas Collectorate and the additional revenue assessable under the present re-settlement.
11. Surendranath Ghosh was the then tenure-holder. The then proprietor of these estates was Sir Charu Chandra Ghose, and his view is to be found in Ex. A, his letter to the Assistant Settlement Officer dated 23rd March 1932. He said:
I am entitled under the lease (referring to the Potta dated 13th June 1877) to a net sum of Rs. 4500 per annum and it is provided in the lease that in the event of a fresh settlement by Government of the malguzari or revenue in respect of the said lots, my lessees would be responsible for payment of the same.
12. The Assistant Settlement Officer's order on the objection ease is Ex. B in this ease. It is dated 15th April 1932. The Assistant Settlement. Officer quotes from the leases and says:
From the above two extracts it is clear that the stipulated profit derived by the present objector Sir Charu Chandra Ghose after deducting revenue and Road Cess from the stipulated rent of the tenure-holder will remain intact even at the time of resettlement. The tenure-holder represented by Mr. S.K. Boy Chowdhury, Advocate, also agrees to the proposition. Hence it is directed that the increased amount of revenue will be added to the existing rent of the tenure-holder and the resultant rent will be the new rent of the tenure-holder. The revenue will not be jeopardised by such arrangements as agreed upon between the parties and I accept the proposal.
13. The Assistant Settlement Officer's order on the objection of the tenure-holder is Ex. 7 in this case and it is of the same date. After stating the, grounds of objection the officer ordered:
As regards ground No. 1 I have dealt with the terms of the contract in connexion with objection No. 1 filed by Hon'ble Sir Charu Chandra Ghose. As agreed upon between the parties the stipulated net profit of the lessor Sir Charu Chandra Ghose will (not ?) be minimised and the increased revenue will be paid by the objector. This is according to the proposals of both the parties.
14. So the decision as to the rent payable by the tenure-holder in the proceedings under Part 2, ch. 10, Bengal Tenancy Act, was arrived at on the agreement of the parties and as explained by themselves. The order was by the consent of the parties and on the basis of the rent thus settled for the tenure the revenues for the estates were settled and Sir Charu Chandra Ghose took settlement thereof for another period of 30 years: Ex. A1, A2, A3 and Ex. L1 (Order 15). So at least in this case the Settlement Officer did not disregard or alter the contractual rights of the parties. He felt that he was bound to regard the terms and to give effect to them. He gave effect to his view of such terms which completely corresponded with the views of the parties themselves.
15. Even after the re-settlement proceedings the parties did not resile from this position for some time, as will appear from Exs. 10, 10 (a) and 10 (b) in this case as also from the admitted fact that payments by the tenure-holder were made on the footing of the rent thus settled. It is difficult to see why after all this a dispute like the present arose between highly respectable persons like the parties to the present litigation. But somehow the dispute arose and the matter is before us for our decision as to the terms of the lease of 1877. The whole controversy centres round the following passage in the kabuliyat:
And besides the Government Malguzari fixed for the present, I shall be responsible for payment of whatever new abwab or new revenue in respect of the said lots may be fixed or imposed by Government according to law or under orders of the officers of the time and Mahantji has nothing to do with the same.
It is not disputed that whatever liability was undertaken by this clause was undertaken over and above the sum of Its. 4500 already fixed. The controversy is about the meaning of the words 'new revenue' used in this clause--whether these words refer to the revised and re-settled revenue and mean the amount in excess of the present revenue or whether they mean and refer to a new kind of revenue. The Urdu words are:
aur siwai malguzari sarkari muainai hal ke jo abwab jadid yia malguzari jadid Government se misbat lathai markuran quanunan yia bahukme hukkam waqt quaim hobey...
There is no dispute that the word 'jadid' means 'new.' The plaintiffs contend that the words 'malguzari jadid' or 'new' malguzari mean and refer to the revenue that will be settled after the then period of settlement. According to them these words standing by themselves would have rendered the defendants liable to pay the entire amount of the revised revenue. But the words 'aur siwai malguzari sarkari muainai hal ke'--'and besides the Government malguzari fixed for the present'--reduce this liability and the words 'malguzari jadid' read with these words make the defendants liable to pay the excess amount of the revised revenue. The defendants on the other hand contend that the word 'jadid' meaning 'new' means and refers to new a kind of revenue and not to any fresh settlement of the same kind of revenue.
16. Before the learned Subordinate Judge the defendants contended that the words 'abwab and malguzari' in the kabuliyat were equivalent to the word 'cess' as used in the corresponding clause of the potta. The learned Subordinate Judge held: (1) that during the Moghul period the word 'malguzari' was taken to mean all kinds of collections from lands; (2) that the word malguzari acquired the restricted meaning of land revenue pure and simple as opposed to 'abwab' or 'cesses' since after the year 1793, (3) that the word 'malguzari' appeared in the kabuliyat in several places and everywhere else it admittedly conveyed the meaning of either land revenue or the rent; (4) that under the clause in the lease the tenant undertook to pay new cesses (jadid abwab) and new revenue (jadid malguzari), besides the revenue that was payable by him on behalf of the landlord in terms of item 1 of the covenants; (5) that the words 'jadid malguzari' (new revenue) should be taken to mean a revenue that has not been already assessed; and having regard to the subsequent words in the term, that is 'imposed by Government or order of authorities of the time,' the words should mean 'imposition of revenue under a head not yet known to the parties' to the contract;' (6) (a) that the words cannot be taken to mean the revenue that was to be assessed upon re-settlement of the estates apparently according to the law that wasin force at the time of the contract, (b) that the word when used with revenue should be interpreted as revenue that might be imposed under a new law or order and under heads different from the head of the existing revenue, (c) that 'it is not necessary to trouble our mind with the question whether new heads of revenue other than the land revenue are possible to exist;' (7) that though the re-assessed revenue was termed new revenue in the final report in the re-settlement proceedings it was in fact, an enhancement of the old revenue for all intents and purposes and cannot under any circumstances be taken to be new impositions as contemplated in the covenants of the lease. The learned Subordinate Judge therefore concluded that
by the undertaking to pay new revenue the tenant made himself liable to pay any revenue imposed by any future law under a new head other than the head of land revenue
and, consequently, he was not liable to pay the excess amount of the revised revenue over the old revenue. As we have pointed out above, the dispute relates to the meaning of the words 'aur siwai malguzari sarkari muainai hal ke jo abwab jadid yia malguzari jadid....
The word 'siwai' means 'besides,' except, 'over and above.' It further means 'any addition to the standard or customary revenue, whether as an increase of the amount or in the shape of a new or additional cess or impost.
17. The word 'Mal' is Arabic and means 'wealth,' 'property,' 'revenue,' rent derivable from land. It means the full land revenue. In India it was used for the public revenue from any source whatever, but more specially for that derived from land, to which sense, as a fiscal term, it is now restricted, or the revenue claimed by the Government from the produce of cultivated lands: (Wilson's Glossary.)
18. Malguzari means revenue assessment -- the payment of land revenue. It is a term also applied to assessed lands, or to lands paying revenue to Government, also the rent of such lands: Fifth report. The word ordinarily means revenue and not rent. Chattra Kumari Devi v. W.W. Broucke . No doubt the word 'malguzari' during the Moghul period was sometimes used in a comprehensive sense. But the items other than the land revenue were also designated by the word 'abwab.' The word 'abwab' is the plural of 'bab' which is equivalent to a head, an item and means items of taxation. When the Moghul authorities desired to levy an additional sum the usual way of accomplishing their object was, not by increasing the original amount of the land revenue proper but by imposing a tax for some particular purpose. Such purposes were numerous and the consequent imposts were also numerous, such as chauth maratta, abwab faujdari, abwab rahdari, charge for khilats, khas navisi, etc., etc. All these imposts might go by the name 'malguzari.' But when in the same passage we find the use of the words 'abwab' and 'malguzari' both, the word 'malguzari' must be taken as used in contradistinction to the other word 'Abwab' and 'Malguzari' must be taken in its strict and appropriate sense of 'land revenue' only. Further the year 1877 was long rernoved from the Moghul period.
19. Jadid means 'new,' 'modern,' 'recent' The word 'Jadid'. does not exclude the conception of 'newness on account of an addition to the amount or on account of the revision or newness of the settlement.' On the other hand reading with the words 'siwai malguzari... hal ke 'the words 'malguzari jadid' will most fittingly include any addition to the amount of revenue payable at the date of the kabuliyat. Certainly 'jadid' includes 'new kind' also; but newness denoted by the term is not confined to newness in kind only. It includes newness in amount and in settlement as well, whether such revision be under the existing law or under any future law. This, to us seems to be the plain meaning of the words and reading the document as a whole we are of opinion that this was also the intention of the parties. The word 'malguzari' when used in contradistinction to 'abwab' certainly means and refers to land revenue only and we cannot think of any new malguzari unless the word 'jadid'--new--refers to the new amount or to the newly settled amount. Any new kind of impost other than land revenue will be covered by the expression 'abwab jadid' and if 'jadid' when used with malguzari be taken as referring to a new kind, then there will be no conceivable case to which this part of the clause would apply. There is no reason why we should construe the lease so as to render this part of the terms superfluous and meaningless when according to their proper and natural meaning they would have significant use and when, they will not be superfluous with respect to the clear purpose of the instrument. The potta no doubt is not clear in this respect. It says 'And besides the land revenue whatever new cesses will be imposed... shall be borne by you.' The context indicates that the grantor was contemplating that the grantee would bear the burden of the revenue as well. Immediately preceding the term, the document speaks of certain costs to be borne by the tenant. The new imposts contemplated in the clause are also to be borne by the tenant. The use of the words 'And besides the land revenue' which mean 'And in addition to or over and above the land revenue,' indicates that the grantor was under the impression that the revenue was also to be borne, by the tenant. Unlike the corresponding clause in the kabuliyat, the clause in the potta does not speak of the then revenue, but uses the word 'revenue' without any qualification. No express provision for this is made in any other part of the potta, though for the then revenue a provision corresponding to the provision in the kabuliyat was made. According to that provision the burden for the then revenue was to be borne by the landlord. Consequently, standing by itself, the clause in question in the potta might give rise to some difficulties. But reading it with the kabuliyat we are of opinion that the tenant undertook to bear the burden of any additional amount of revenue that might in future be settled by the Government. There can be no doubt that the parties while settling this clause had in view future probabilities and certainly they knew that on the expiry of the term of 99 years the revenue of the estate would be re-settled.
20. In our judgment, therefore, under the terms of the lease, the difference between the amount of revenue now settled for the estates and the amount of revenue that was payable for these estates at the date of the lease shall have to be borne by the tenure-holder. The next question might have been whether or not this amount would form part of the rent of the tenure. Jotindra Mohan v. Jaro Kumari ('03) 30 Cal. 140 at p. 37. But there is no such dispute before us in this case. It is not disputed by the defendants that if they are liable to pay the amount it would be part of the rent of the tenure. The plaintiffs are thus entitled to get rent from the defendants at the rate of Rs. 8168-9-8 a year and public work cess at the rate of Rs. 508-3-6 a year, as claimed by them. The learned Subordinate Judge decreed the plaintiffs' claim for rent at the rate of RS. 4500 and public work cess at the rate of Rs. 508-3-6 a year as claimed in Schedule D of each plaint.
21. In Suit No. 4 of 1939 the plaintiffs in Schedule D of their plaint claim public work cess for the Magh, Falgoon and chaitra Kists of 1342 B.S. at the rate of Rs. 127-0-10 for each Kist. The annual Public Works Cess amounts to BS, 508-3-6. According to the terms of the kabuliyat the rent of the tenure is payable in four kists, namely in the months of pous, Magh, Palgoon and Chaitra of each year. The plaintiffs' case is that according to the terms of the lease the Public Work Cess is also payable in these four kists. The learned Subordinate Judge accepted this case of the plaintiffs in decreeing their claim for the Public Works Cess in full. The defendants have taken a cross-objection to this part of the decree as also to the part of the decree dismissing their claim for set-off in respect of alleged excess payments during the period prior to the one involved in this suit.
22. As regards their claim for set-off, it does not arise in view of our decision as to the amount of rent annually payable for the tenure. Besides the amount ceased to be legally recoverable long before the date of the present suit, the claim being barred by limitation as has been pointed out by the learned Subordinate Judge. As regards the Public Works Cess, the contention of the defendants is that these cesses, are payable in two equal kists in Pous and chaitra and that consequently the plaintiffs' claim as to interest on the cess for the months of Palgoon and chaitra 1342 B.S. is not maintainable. In our opinion this last contention of the defendants must prevail though their success in this respect will release them from their liability in respect of an insignificant sum of RS. 2 only. According to the terms of the lease the liability to pay the cesses in question is to be borne by the defendants. This means that their liability to pay these cesses will arise only when they become due under the law. The four kists provided for the payment of rent in the lease will not apply to these cesses. The plaintiffs are therefore not entitled to charge interest on the Magh Kist for the months of Falgoon and chaitra 1842 B.S. and on the Palgoon Kist for the month of chaitra 1342 B.S. The cross-objection of the defendants is allowed to this extent. In the result the appeals are allowed with costs. The judgment and decrees of the Court below are set aside and the plaintiffs' claims in the two suits are decreed as claimed by them in Schedules 'A' and 'D' of their plaints less the interest on the Public Works Cess as indicated above. The decretal amount will bear interest at 6 percent per annum from the date of the suit till realization. The plaintiffs will also get their costs in the Court of first instance.