1. The plaintiff in this case is a patnidar, and the rent payable by him to the zamindar is Rs. 922. The defendant is darpatnidar, and the rent payable by him to the patnidar is Rs. 1,022. Under the terms of the dar-patni kabuliat the darpatnidar is to pay the zamindar's rent,--i.e., the head rent. It thus appears that the actual amount payable by the darpatnidar to the putnidar for each year is Rs. 100.
2. The present suit is brought to recover the sum of Rs. 3,133-15, alleged arrears of the darpatni rent, with interest. This amount has been obtained by making an account extending over the years after 1274 (1867). In this account the amounts paid by the darpatnidar, as well to the patnidar direct as to the zamindar, are credited to the oldest arrears of the entire amount of darpatni rent.
3. The essential question in the case is, as the District Judge says, a question of appropriation of payments. The District Judge is of opinion that what the parties intended was, that the payments of each year should be credited to the rent of that year, and that any portion of the annual rent unpaid at the end of the year should constitute a separate debt and should not be carried on in a continuous account; in other words, he finds that, within the meaning of Section 60 of the Contract Act, there were circumstances in the case indicating it to be the intention of the parties that all payments made within the year should be credited to the rent of the current year, and not to arrears of past years. We think that this is a finding of fact with which we cannot interfere in second appeal.
4. It has been further contended before us that, in arriving at his conclusion upon the question of appropriation of payments, the District Judge has erred in applying the provisions of Section 13 of Reg. VIII of 1819 to the parties to the present case. We think that, quite apart from what the District Judge says as to the applicability of Section 13 of the Regulation, there is sufficient matter in his judgment to show that, even apart from the section of the Regulation, he would have arrived at the conclusion at which he has arrived upon the question of appropriation of payments.
5. As to the applicability of Clause 3, Section 13 of Reg. VIII of 1819, it is contended that the direction of this clause that money paid in order to stay the final sale shall be deducted from any claim of rent that may at the time be pending on account of the year or months for which the notice of sale may have been published, applies only to payments made into Court, and that, in this case, the payments were not made into Court but to the zamindar out of Court. The District Judge has found as a fact that the money was paid in each instance after the 'ashtomi' application under the Regulation had been made, and in order to stay the sale; and he considered that the staying of the sale is the substance of the thing, and that the paying into Court or paying to the zamindar out of the Court is immaterial. We are not prepared to dissent from that view of the law; and, as already observed, even if we were, we think that there is sufficient matter in the District Judge's judgment to show that, apart from the consideration of Section 13 of the Regulation, he did arrive, and would have arrived, at the conclusion at which he has arrived upon the evidence before him indicating the intention of the parties as to the appropriation of payments.
6. We may, however, observe, that if a strictly literal construction were put upon the words 'into Court,' no payment effectual to stay the sale could be made, for 'the Court' has now nothing to do with these sales, which are managed by the Collector.
7. We think, therefore, that the appeal must be dismissed. But as there is no doubt that these old arrears of the annual rent have not been paid, we think it fair to direct that each party shall bear his own costs of this litigation.