1. This is an appeal in a suit to recover arrears of rent at the rate of Rs. 7-12-4 per annum.
2. The Court of first instance dismissed the suit and declined to decree the plaintiffs' claim at the rate admitted by the tenant defendant because the admission so made could not be construed into a liability to pay rent at the rate of Rs. 5 per annum.
3. The District Judge on appeal has decreed the suit at the rate which he calls the admitted rate of Rs. 5 per annum, and he has deducted from that jama a sum of annas 6 which, he says, is the rent payable in respect of plot No. 2 as to which it has been found that there was no relationship of landlord and tenant between the parties.
4. The tenant defendant appeals, and, on his behalf, it has been urged that the District Judge has wrongly read the written statement and misapprehended the true effect of the admissions made by the tenant in that written statement and his deposition.
5. A preliminary objection has been raised on the part of the landlord plaintiff that no second appeal can be entertained in such a case as this, and reliance is placed on Neikajee v. Nanda Dulal 1 C.W.N. 711.
6. In our opinion, that case is not an authority in the present circumstances. The District Judge has not merely given a decree at the rate admitted by the defendant, but he has deducted therefrom a certain sum, in respect of one of the plots, and held that the remaining land should bear a jama of Rs. 4-10-0 which, in the face of it, is not a jama set up by the defendant. This, therefore, is not the case of a decree being passed in accordance with the admissions of the tenant.
7. After examination of the pleadings and the deposition of the defendant, it seems to us that the District Judge is clearly wrong in creating an artificial rental of Rs. 4-10-0 on a single admission in the cross-examination of the defendant. The true admission, taken as a whole, seems to have been that the defendant held 2 aras 6 khotas and 1 powas of land at an annual rental of Rs. 5. It was found by the first Court that the defendant had been dispossessed of a certain portion of the land, and this finding is apparently acquiesced in by the District Judge, for -he has based his decision on other grounds.
8. In decreeing a rent suit at the admitted rate, it is incumbent on the Court to accept the admissions of the tenant as a whole, regard being had to the question whether the land in the possession of the defendant is the same as it was when the tenancy was created. We think the decree of the District Judge, based on a part, of the explanation offered by the tenant, cannot be supported.
9. The appeal is accordingly decreed; the decree of the lower appellate Court is set aside, and that of the first Court restored. The plaintiff's suit is dismissed.
10. The parties will bear their own costs throughout.