1. This appeal arises out of a suit for recovery of arrears of rent, The plaintiffs claimed rent at the rate of Rs. 10 per year. Whereas the case of the defence was that the rent annually payable by the defendants was Rs. 2-8-0 only. The trial Judge accepted the figure as given by the plaintiffs and on that basis gave a decree to the plaintiffs for rent at the rate of Rs 10 per year. On appeal the lower appellate Court did not consider the plaintiffs' evidence on the question of the rate of rent sufficient, and holding that the kabuliyat which had been filed by the plaintiffs in support of their case did not relate to the land in suit allowed the appeal and gave the plaintiffs a decree only at the admitted rate, namely Rs. 2-8-0 per year. The plaintiffs have come up to this Court on second appeal.
2. A preliminary objection was taken on behalf of the respondent that no second appeal lay in the present case under Section 153, Ben. Ten. Act. I think this objection is sound and should prevail. The amount that was claimed in the case was less than Rs. 100 and the second appeal comes against a decree passed by a Subordinate Judge. The suit has been decreed by the learned Subordinate Judge at the rate of rent admitted by the defendants and it has been held in Nekejaie v. Nanda Dulal Bankeja  1 C.W.N. 711 when a decree is given at the rate admitted by the defendants it is not a case of determination of the annual rent payable as mentioned in Section 153, Ben. Ten. Act.
3. On the merits also I do not think that this appeal can succeed. As I have said before the learned Subordinate Judge found the evidence, which the plaintiffs adduced to substantiate their case, unsatisfactory. One of the documents which the plaintiffs filed was a kabuliyat. This kabuliyat mentions the rate of rent to be Rs. 10, but the learned Subordinate Judge although he found that there was nothing, suspicious about the genuineness of this document, came to the conclusion that the kabuliyat did not refer to the land in suit. It was contended on behalf of the appellants that the learned Subordinate Judge was not justified in raising this point in appeal as the point had been never raised before in the trial Court. But the lower appellate Court was a Court of fact as well as of law, and remembering that the kabuliyat was only a piece of evidence I do not think that it was beyond the scope of the learned Subordinate Judge, in considering the question of the relevancy of that document and in holding that that document which was nothing but an item of evidence, was irrelevant for the purposes of the case.
4. The only point that was taken before me on the merits of the case, therefore, fails. The appeal is accordingly dismissed with costs.