1. In the suits out of which these appeals arise the plaintiff sought to recover arrears of rent in respect of two separate holdings which he had purchased under Section 55, Village Chaukidari Act (Act 6 of 1870). Various pleas were urged on behalf of the defendants, but the only points raised by the defence with which we are concerned in these appeals are (1) whether or not the plaintiff is entitled to recover the whole of the rent for 1341 B.S. or only for two kists for that year and (2) whether the defendants are entitled to a reduction of rent. With regard to the first of these points, it appears that the first Court allowed the plaintiff to recover rent for the whole of 1341 as claimed in the plaint. The lower Appellate Court held however that as the sale took place on 10th November 1934, that is in Agrahayan 1341 the plaintiff was only entitled to recover rent for two kists of that year. In support of his case with reference to this point the plaintiff relies upon the terms of the sale certificate granted to him which states that his purchase took effect from 16th Baisakh 1341 B.S. It is however contended on behalf of the defendants that, having regard to the clear provisions of the law, the date-mentioned in the sale certificate must be a clear error as the sale could not have taken effect until after the last day for payment of the assessment, which according to the defendants must be taken to have been the date mentioned for payment in the notice issued by the Collector under Section 55, Village Chaukidari Act.
2. Under Section 52 of Act 6 of 1870, it is provided that the assessment shall be a permanent yearly charge on the land and shall be payable to the collecting member of the panchayat yearly in advance on the first day of the year current in the village by the person for the time being entitled to recover the rents of such land from the occupier thereof. Section 54 provides that, when the assessment shall be in arrear for the space of fifteen days after it shall have become payable, the collecting member of the panchayat shall forward to the Collector of the District in which the land so assessed is situate notice of the amount of such arrear and the name of the person liable to pay such assessment in the form in Schedule D annexed to this Act. From these Sections, it would appear that the chaukidari assessment becomes an arrear corresponding to an 'arrear' under Section 2 of the Revenue Sale Law if it is not paid on 1st of Baisakh in each year. A period of grace of fifteen days is allowed by Section 54 of the Act and, if the requisite payment is not made within the period of grace, the Collector may be asked to sell the land under Section 55 of the Act. This Section provides for the issue of a notification for sale under Section 6 of Act 11 of 1859, and then goes on to say that unless the arrears be paid within the time mentioned in such notification, the Collector shall sell such land according to the provisions of the Revenue Sale Law. It is therefore necessary in the notification for the Collector to mention a date within which the arrears should be paid. In this connexion, the last portion of Section 55 of the Act is important which provides that
all provisions of the law for the time being in force with respect to the sale of such estates shall apply to the sale of such land, and every such sale shall have such and the same force and effect as if the same were a sale of an estate for arrears of its own revenue.
3. Having regard therefore to the provisions of this Section read in the light of the corresponding provisions of the Revenue Sale Law it would appear that the date to be mentioned by the Collector in the sale notification, which he is bound to publish under Section 55, must be taken to correspond with the latest day of payment to which reference is made in Section 3 of Act 11 of 1859. Section 28 of the latter Act provides that
immediately upon a sale becoming final and conclusive the Collector or other officer shall give to the purchaser a certificate of title in the form prescribed in Schedule A annexed to this Act,
4. It is clear from the form contained in Schedule A that the date with effect from which the purchase takes effect must be the day after that fixed for the last day of payment which would appear to be the date to which reference is made in Section 3 of the Revenue Sale Law. It follows therefore that inasmuch as the general provisions of the Revenue Sale Law must apply to sales held under Act 6 of 1870, the date mentioned in the plaintiff's sale certificate should have been the date after the date fixed by the Collector under Section 55 for the payment of the arrears. It stands to reason that this date could not possibly have been 16th Baisakh which was the date upon which the requisition for sale was sent to the Collector by the collecting member of the panchayat under Section 54, Village Chaukidari Act. Clearly, the date in question must have been considerably later than 16th Baisakh. The onus clearly lay upon the plaintiff to show what this date' was and as he has not discharged this onus, I think that the lower Appellate Court was justified in holding that the title of the plaintiff accrued only from 11th November 1934, namely the date upon which the sale was held. In this view of the case it is clear that the plaintiff would only be entitled to recover two kists for the year 1341. As regards the other two kists the defaulting landlord would be entitled to recover the arrears of rent due to him in view of the provisions of Section 55 of there Revenue Sale Law which provides that
arrears of rent, which on the latest day of payment may be due to the defaulter from his undertenants or raiyats shall in the event of a sale be recoverable by him after the said latest day by any process except distraint which might have been used by him for that purpose on or before the said latest day.
5. It is urged on behalf of the appellant that considerable hardship will result to him by the decision of the lower Appellate Court. I am however not prepared to accept this argument. As regards the year 1341, it is clear that the plaintiff has no liability at all in respect of the payment of the chaukidari assessment as this liability has been met out of the sale proceeds under Section 56 of the Act and his liability as regards the assessment can only be held to have accrued on 1st Baisakh 1342. In my opinion the decision of the lower Appellate Court on this point is correct.
6. As regards the second point it has been held by the lower Appellate Court that the rent payable by the defendants had been reduced. The Record of Eights shows the rent payable in respect of these holdings at the rate claimed by the plaintiff. This being the case the onus would, in my opinion, lie very heavily upon the defendants to show that they were liable to pay rent at a reduced rate. All that they have done for the purpose of discharging this onus is to examine a person named Golam Nabi who claims to have been a gomasta of the managing landlords. His evidence however is merely to the effect that he was authorized by two of these landlords to collect rent at a reduced rate. He states that the landlords who had given him this authority were managing the estate on behalf of the other landlords but there is no indication in his evidence to the effect that the other landlords had given the two managing landlords authority to reduce the rate of rent payable by the tenants nor does this witness state expressly that the reduction was of a permanent nature. In this connexion it was pointed out by Gupta J. in Radha Raman v. Bhabani Prosad (1910) 12 C.L.J. 439 that
mere acceptance of a reduced rent, though it may amount to a lull acquittance of rent for the particular year or years for which the rent was paid, cannot operate as a binding contract between the parties without proof of the agreement which formed the basis of the reduction granted.
7. Similarly, in Lakshmi Charan v. Nabadwip Chandra Pandit : AIR1929Cal437 , Mitter J. observed that
it lay on the defendant to establish that there has been a permanent relinquishment of the right by the plaintiff to receive the higher rent. The fact of the non-realization of rent for a large number of years may be consistent with a temporary abatement although the temporary abatement might extend over a large number of years.
8. Having regard to the principles laid down in the two cases cited above, I do not think it can be said in this case that the defendants have succeeded in discharging the onus which clearly lay upon them to establish the permanent character of the reduction which they sought to prove. With regard to this point therefore I am of opinion that the decision of the lower Appellate Court is erroneous. The result therefore is that the appellant's suits will be decreed at the full rate of rent, cess and damages claimed by him in respect of the last two kists of 1341 B.S. The decrees of the lower Appellate Court must be modified accordingly. I make no order with regard to the costs of these appeals.