1. This was a suit for arrears of rent for the years 1250, 1251 and 1252 Maghi, based on a kabuliat. The defence, so far as it is necessary to consider it for the purposes of this appeal, was that the plaintiff was not entitled to recover anything on account of bhet and begar, that is, presents and labour, as the items claimed under this head were in the nature of abwabs; that he was not entitled to claim anything on account of road fund; that he was not entitled to recover anything as damages, and that the defendant was entitled to abatement of rent on account of the area that was occupied by embankments or had to be left out on account of the erection of the embankments.
2. The first Court allowed some of these objections and decreed the claim of the plaintiff in part. Against the first Court's decree both parties, appealed; and the learned Judge below has modified the decree of the first Court and given the plaintiff a decree in modification of the claim.
3. Against that decree of the lower Appellate Court, the plaintiff has preferred this appeal, and the defendant has raised certain objections, under Section 561 of the Code of Civil Procedure. The points argued on behalf of the plaintiff-appellant are these: namely, first, that the Court of Appeal below ought not to have given any effect to the clause in the kabuliat with reference to remission of rent in regard to the years for which rent had been paid in full, but should have limited the effect of that clause to the years for which rent was claimed; second, that the Court of Appeal below was wrong in allowing remission on account of an area of 13 kanis odd; third, that the Court of Appeal below ought to have allowed interest at the rate stipulated for in the kabuliat; and fourth, that what was claimed on account of road fund should have been allowed: and the objections urged on behalf of the defendant-respondent under Section 561 are these, namely, first, that the Courts below ought to have disallowed the claim for bhet and begar, presents and labour, amounting to 17 rupees 4 annas a year; second, that the decree of the lower Appellate Court has erroneously allowed the plaintiff damages although the judgment distinctly disallowed the same; and third, that the lower Appellate Court ought not to have made the defendant liable for the whole of the Amin's costs,
4. We shall consider the paints urged in the plaintiff's appeal first, and then those urged by the defendant by way of cross-objections.
5. As to the first point urged on behalf of the plaintiff; the learned Judge in his judgment observes: The wording of Section 52(b) of Act VIII of 1385 leads me to believe that the rents for 1249 M.S. and backward having been paid, the reduction is operative for the years in suit and those years only but such a result seems somewhat hard on the defendant in view of the conditions of the tenancy;' and then towards the close of his judgment, he says the abatement will take effect from 1216 M.S., there being a running account between the parties.' We think the learned Judge is wrong in the view that he has taken of this matter. We may observe that the claim for abatement of rent in this case does not come within the purview of Section 52, Clause (b). Remission is here claimed not on account of land not found in the possession of the tenant, but on account of land which, though included in his tenure, he was obliged to leave uncultivated on account of the necessity of having to-erect embankments to protect other land, and remission for land so left out is provided for in the written contract between the parties That being so, prima facie, no doubt the defendant was entitled to remission for all the years for which the land had been so left uncultivated; but then it is admitted by the defendant himself in his written statement, ParaGraph (sic)5 and it has been found by the learned Judge below, that rent for all the years down to 1219 has bean paid; and what the defendant urges in support of his claim for remission is given in these words in the 5th paragraph of his written statement: 'The plaintiff, on receiving the rent of the said land from the defendant, promised to remit it afterwards.' A special promise to remit rent on account of the years for which rent had been paid in fall, is what is here relied upon in the defence; but no such promise has been made out and the learned Judge below does not base his decision upon any such promise. We are of opinion that the only ground urged for having effect given to this stipulation in the kabuliat for remission in regard to the years for which rent had been paid in fall, has not been made out, and that the defendant was, consequently, entitled to abatement only in respect of the years for which rent has been claimed.
6. As to the second point urged for the plaintiff; no reason has been shown to us why we should hold that the area in respect of which remission has been allowed was too large.
7. As to the third point, we observe that no interest was claimed in the plaint at the rate stipulated for in the kabuliat. What was claimed in the plaint was damages at the rate of twenty-five per cent., and that the learned Judge disallows, holding that this was certainly not a case where damages could be allowed for rents wilfully withheld. And then as regards the last point urged, the first Court says: 'That plaintiff himself, it seems, has not got to pay anything as road fund to Government, and so he cannot realise it from the defendant.' That finding does not appear to have been successfully challenged in appeal before the Judge; and we think it is too late for the plaintiff to ask us here to interfere on that point.
8. The plaintiff's appeal, therefore, succeeds only as to the first point, and the remission that has been allowed for the years 1246 to 1249 should be disallowed and the decree of the lower Appellate Court modified accordingly. Then, as to the defendant's cross-objections, we are of opinion that the first one is entitled to succeed. In the kabuliat, we find that the total assessable area given is (sic)5 drones and the mohrari jama or fixed rent mentioned, is 360 rupees. Then, there is an additional item under the heading of 'Price of presents and unpaid labour,' amounting to 17 rupees 4 annas; and these two sums are added together and put down as amounting to 377 rupees 4 annas under the heading of Total rent'; and it is upon the fact of the entire sum of 377 rupees 4 annas being placed under the heading of 'Total rent', that the judgments of the Courts below in favour of the plaintiff are based. But in addition to this fact appearing on the face of the kabuilat, there are other parts of the document, which, in our opinion, have a very important bearing on the question before us, and those parts of the document are the following: The tenant first of all stipulates to this effect that after paying at your zamindari sherishta the aforesaid rent from year to year according to the instalments mentioned above, I shall take dakhilas for the same. If I become a defaulter by dishonestly omitting to pay the said rent, then I shall not be competent to make any excuse or objection against your realising the rent in arrears together with interest thereon at 2 rupees 8 annas per cent. per mensem as well as costs and damages by sale of this etmami under Regulation VIII of 1819, and also by any other means provided by the laws now in force and those that may hereafter be enforced.' And then the kabuliat goes on to provide: 'Besides, I shall every year at the time of the Saradia (Durga) Puja give you four castrated goats as presents and shall supply you labour without wages for five days, which if I fail to do, I shall have no objection to your realising the sum of 17 rupees 4 annas as the price of the said presents and labour in addition to the amount of rent.' These provisions of the kabuliat go, in our opinion, distinctly to show that what was regarded as the actual rent was the sum of 360 rupees, which, we may observe in passing, bears a clear and definite proportion to the assessable area of 15 drones; and that the sum of 17 rupees 4 annas, which was the money equivalent of the bhet and begar or presents and labour, was in the nature of an imposition in addition to the actual rent within the meaning of Section 74 of the Bengal Tenancy Act and must, therefore, be held to be illegal, and the stipulation for the payment of the same must be held to be void. We may further observe that not only is this distinction between the actual rent and these additional items made in the kabuliat, but it is also observed in the plaint itself, in which the plaintiff says: 'The defendant having on 2nd Pous 1246 (Maghi) executed an etmami kabuliat in favour of the plaintiff, agreeing to pay annually 360 rupees as rent and 17 rupees 4 annas as the value of bhet (presents) and begar (unpaid labour), is by virtue of etmami title in possession of the land contained within the boundaries given below.' There is not, therefore, in our opinion, any room for doubt that the sum of 17 rupees 4 annas claimed as part of the rent is really abwab and, therefore, not realizable.
9. The second contention urged on behalf of the defendants, namely, that the decree has erroneously allowed damages though the judgment has disallowed that part of the claim, must also succeed; the learned Vakil for the plaintiff-appellant does not question the correctness of the contention of the defendant.
10. As to the third point urged by the defendant; we think that must fail. It was quite in the discretion of the lower Appellate Court to have apportioned the costs of the amin in any way it thought proper, and in the exercise of that discretion the lower Appellate Court has considered it fit to make the defendant liable for it. The part of the judgment we do not think we ought to interfere with on second appeal.
11. The cross-objections, therefore, succeed in regard to the item of 17 rupees 4 annas, which we disallow as abwab and also in regard to the amount of 287 rupees 5 annas 6 pies, which has been erroneously allowed in the decree as damages.
12. The result then is that both the appeal and the cross-objections succeed in part, and the decree must be modified accordingly; but under the circumstances, we make no order as to the costs of this appeal.