1. This is an appeal from a decision of the learned Additional District Judge of Hughly, dated the 8th July 1913, affirming the decision of the Munsif. The suit was brought by the plaintiff to recover certain instalments in respect of the drainage charge. The facts which are simple appear to be as follows: The defendants' father sold the property to the plaintiff. He concealed from the plaintiff at the time of sale the fact that the property was subject to the drainage charge. The plaintiff on his purchase granted a tenancy of the property to the defendants' father and he now sues the defendants in respect of the moneys that he has paid as such charge. As regards the claim, if it had been against the estate of the father of the defendants, apparently that would be barred under the provisions of the law of limitation, but the plaintiff claims to recover these instalments under the provisions of the Bengal Drainage Act. The only question that has been raised is as to whether, in order to enable the plaintiff to sue, it is essential that the mode and time of payment ought to be settled by the Collector under the provisions of Section 44, The Collector has not been applied to in this case. But it seems to me that that is merely a permissive section and does not control the right of a land-holder or a superior tenant to recover the instalment under the two Sections 42 and 44. The limitation on the right of the landlord or the superior tenant is that the tenant shall not be liable to pay more than 1/10th of the total amount in one year. It is not suggested that the amount sued for in the present case is more than 1/10th of the total amount.
2. The only point that has got any substance in this case is as to the instalment which became due in 1907. The learned District Judge has said: 'It is conceded for the defendants that if the Bengal Tenancy Act regulates the question the claim for 1907 is in time.' That concession might or might not have been made. But the gentleman who conducted the case in the Court below on behalf of the defendants was not authorised to concede anything that was not in accordance with the law, and, if it is shown that that is an error, we are bound to put it, right. The fact is that the parties have got a difficulty in dealing with the European dates as compared with the dates of the Bengali Calendar. That is not an important thing. But what did really happen is that this instalment fell due on 30th Chaiyat 1313 B.S. That was the last day of the Bengali year. That date corresponds with the 13th April 1906. It was urged in the lower Appellate Court that the date was in 1907. That was clearly a mistake The last date on which the suit could be maintained for that instalment would be 1st Pysakh 1317 B.S. The Judge considered it to be 1318 If that is so, that instalment which was called the 1907 instalment but which was really the 1906 instalment, was barred by limitation.
3. Another question that haw been raised in this appeal is as to interest. Interest was claimed in the plaint in a lump sum. It is not shown on what principle that sum was arrived at or what was the rate charged. Section 26 (1) of the Bengal Drainage Act provides that interest shall have to be paid at the rate of 4 per cent. No question was raised as regards this in either of the Courts below, and wo must take it that the parties were content that the interest charged for had been properly arrived at, if payable. The question is not purely a question of law but a mixed question of law and fact, on which no finding has been made by the lower Appellate Court to enable us to consider whether the question has been purely considered or not. The result is that subject to the variation that I have stated, namely, as to the instalment that is called the 1907 instalment but which is really the 1906 instalment being barred by limitation, the present appeal stands dismissed. In the circumstances, as both parties have partly succeeded in the appeal, I think there should be no order as to costs of this Court.
4. Teunon, J.--I agree.