Macpherson and Gordon, JJ.
1. A preliminary objection has been taken by the respondent that under Section l53 of the Bengal Tenancy Act no appeal lies in this case. The suit is to recover from the defendant rent due to the plaintiff, including cesses and dak tax, and the amount claimed is less than a hundred rupees. The dak cess is claimed under the contract by which the rent is payable; it is claimed practically as part of the rent, and according to the definition of that word as contained in the Bengal Tenancy Act, we think it must he regarded as rent, that is to say, as a part of what is lawfully payable in money for use and occupation of the land held by the tenant. The occupation of the land was the consideration for the payment of the dak cess, and that being so, the amount of rent is in dispute, and this takes the case out of the provision of Section 153, which in certain cases bars an appeal.
2. The appellant contends, first, that the Lower Appellate Court was wrong in reversing the decree of the first Court and holding that the defendant was not bound to pay the dak cess under the agreement; secondly, that it was wrong in reversing the decree of the first Court, as to the instalments in which the rent was payable; and thirdly, that it was wrong in reversing the first Court's decree as to the interest payable.
3. As regards the first point, we think that the Lower Appellate Court was right, that there was no contract to pay the dak cess in particular, and that the mere fact that the defendant bad for a considerable number of years been paying it would not render him liable to pay it for all time, if he was not legally bound to do so.
4. The decision of the Lower Appellate Court upon the other two points appears to us to be clearly wrong. The first Court held that in the absence of any agreement or established custom the rent must be paid in four instalments under the provisions of Section 53 of the Bengal Tenancy Act. It appears that only one witness spoke to the periods, at which the rent had been paid, and his statement was of a very ambiguous character. The Judge, however, held on the strength of it that the whole rent was payable at the punya, but he does not expressly find whether, being so payable, it was payable in advance or in arrears, and the decree does not throw any light on that question. But, however that may be, we think the Judge was entirely wrong in holding that the established usage was proved by what that witness stated. In the case of the Hira Lal Dass v. Mothura Mohun Roy I.L.R. 15 Cal. 714 it was held that the established usage referred to in Section 53 was not the usage between the parties, but the established usage of the locality; and that is a point upon which the witness does not profess to speak. Under the circumstances, therefore, the Munsif was right in holding that in the absence of any proof of any agreement or established usage the rent was payable in four instalments in accordance with the provisions of Section 53 of the Bengal Tenancy Act.
5. As regards also the question of interest the Judge has clearly made a mistake. The Munsif allowed interest from the date of the institution of the suit on the sum decreed as rent, and from the date of the decree on the total amount decreed. The Judge considers that when damages were awarded under Section 68, it was not competent to the first Court to allow any further sum as interest after the date of suit. By the proviso to Section 68 interest is not to be decreed where damages are awarded; but we think that the damages represent the sum which the plaintiff is allowed in lieu of interest up to the date of suit; and that the award does not interfere with the interest which under Section 68 may be allowed subsequent to that date, certainly it would not prevent the Court from allowing interest from the date of decree.
6. The result is that the decree of the District Judge will be amended by adding to it interest on the sum decreed as rent at the rate of six per cent. per annum from the date of the institution of the suit up to the date of the decree, and interest on the total amount decreed, at the same rate, from the date of the decree until payment, and by striking out therefrom the words,
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7. We make no order as to costs.