1. This is an appeal in an action to recover arrears of ijara rent for the second kist of 1309.
2. The defendant pleaded payment.
3. The first Court allowed certain payments and allowed interest in accordance with Section 67 of the Bengal Tenancy Act at the rate of 12 per cent, per annum. On appeal to the District Judge, the plaintiff's claim has been fully decreed with costs.
4. For contentions have been advanced before us on behalf of the ijardar defendant. On the first contention that the defendant is entitled to collection charges, we are informed that there is a stipulation, to that effect in the qabuliyat and the learned Vakil for the plaintiff consents that the decree of the lower appellate Court should be varied so as to allow a deduction of these collection charges, namely, to the amount of Rs. 4-15-3 (Rupees four, annas fifteen and pies three).
5. The second argument of the learned Vakil for the defendant, is directed to the rate of interest which the District Judge has raised from 12 per cent, to Rs. 37 1/2 percent. It is conceded that Section 67 of the Bengal Tenancy Act applies to Orissa and that Section 178 of the same Act does not. The natural result of this state of things is that a contract may be made between a landlord and his tenant modifying the provisions of Section 67 with regard to payment of interest on arrears of rent The parties to this litigation did modify that section by stipulating that arrears of rent should carry interest at 37 1/2 percent per annum. We do not see how we can interfere with the contract rate agreed upon.
6. The third contention concerns the barats (payments-orders) issued by the plaintiff on the defendant to pay certain amounts to third persons, such amounts being subsequently deducted from the ijara rent. We have examined specimens of these barats. They are merely payment-orders. There is no finding that the sums mentioned in the barats were actually paid to the proper recipients, and that being so, we must accept the conclusions arrived at by the Court below.
7. Another contention has been somewhat faintly pressed upon us, namely, that regarding a payment of Rs. 37 to the plaintiff's son; this person says that it was paid on account of the first kist of 1309, whereas this suit is for the second kist. We cannot interfere with the finding arrived at by the learned District Judge.
8. The last argument advanced is on a point which is not specified in the grounds of appeal and was not considered in either of the Courts below. In paragraph 5 of his written statement, the defendant pleaded that he having asked a deduction of the rents of the aforesaid lands, the plaintiff instead of deducting the same dispossessed him from the said ijara mouzah in the year 1310 and himself realised the rents from the tenants by khas collection. On the merits of this contention, it does not appear whether the deductions were asked for in respect of 1309 or whether they were for 1310. However that may be, we are not prepared to accede to the contention that if a landlord dispossesses a tenant and the tenancy comes to an end, the tenant is, therefore, relieved from the liability of paying the rents already accrued due in respect of previous years. This is a view which is not borne out by the authority of Rani Lalita Sundari v. Rani Surnomoyee Dasi 5 C.W.N. 353 to which our attention is called.
9. In the result, the appeal is dismissed with the small variation, we have already indicated, as to the sum of Rs. 4-15-3.
10. In the circumstances we pass no orders as to costs.