1. This appeal arises out of a suit brought by the respondents against the appellant for arrears of rent. The plaintiffs-respondents claim rent at the rate of Rs. 133-4 annas odd and cesses at Rs. 15-13 annas odd per year. The rent suit was for the years 1324 to 1327 B.S. The defence of the defendant, now appellant, was that a part of the claim was barred by limitation as the defendant deposited rent for 1324 to Aswin kist 1326 B.S. in Court under Section 61, Bengal Tenancy Act, and the notices of the deposits were served on the plaintiff more than six months before the suit was filed and that consequently the claim for 1324 to Aswin kist 1326 B.S. was barred by the special limitation prescribed by Article 2 Clause A, Schedule 3, Bengal Tenancy Act, and that the claim for the cesses was excessive.
2. The Court of first instance gave effect to the plea of special limitation and dismissed plaintiffs' claim for the period 1324 to Aswin kist 1326 B.S. and gave a decree for the subsequent period, i.e., from Kartick 1326 to the end of 1327 B. S. The trial Court also gave a decree for cesses for the year 1324 to the Aswin kist of 1326 B.S. at the rate of Rs. 10-6 annas per annum and for the subsequent period at the rate of Rs. 15-13 annas per annum. He gave a decree for damages at the rate of 25 per cent, per annum on the amount of the claim allowed, i. e., on Rs. 223-9-181/2 gandas and directed that against the claim of Rs. 223 and odd and the damages on the same at the rate of 25 per cent. per annum should be set off the amount deposited for rent from Kartick 1326 to Chaitra 1327 B.S.
3. Against this decision an appeal was preferred to the Subordinate Judge of 24-Parganas by the plaintiffs and a cross-appeal was preferred by the defendant. The appeal and the cross-appeal were both dismissed with costs.
4. A second appeal has been preferred on behalf of the defendant and two points have been urged on her behalf by her learned advocate. It is contended in the first place that cess should not have, been allowed at the rate of Rs. 15-13-0 for the last six months of 1326 B.S. and the year 1327 B.S., as the defendant was not a tenure-holder but was a cultivating ryot within the meaning of the Cess Act. This argument is put in this way: It is true that the rent of the entire land exceeds Rs. 100 but a portion of the tenancy is situate within the municipal area and if the area within the municipality is taken into account the rent for the rest of the holding would be less than Rs. 100 and in such a case the cess would be valued on the footing that the defendant was a cultivating ryot and not a tenure-holder within the meaning of the Cess Act. To show that the Collector made deductions on account of the municipal area in the calculation of road-cess, plaintiffs adduced in evidence road-cess returns filed by them which contained a statement that the municipal area was excluded from consideration in the calculation of road-cess. It is argued that under Section 95, Cess Act, such returns cannot be admitted as evidence in favour of the plaintiffs who filed them. We think that there is considerable force in this contention. But it is not necessary to deal with this matter any further as this contention involves a claim for a small sum and we do not desire that this litigation should any further be prolonged. This decision on the question of cess, however, will be confined to the cesses for the years in suit and will not bar the agitation of the question in a suit for cesses for any future period.
5. It is contended in the second place that the deposit under Section 61 being a valid deposit, it should have been credited against the amount decreed, i.e., the sum of Rs. 223 and odd and on the difference between the two sums the Court' should have awarded damages. The Courts below have held that the deposit was not a valid deposit as it fell short of the amount due for rent. The amount due according to the plaintiff was Rs. 223-9-184 gandas. The amount deposited under Section 61 was Rs. 216-5-24 gandas. It is said, therefore, that the decrees should have been on the difference, viz. Rs. 7-4 annas 16 gandas plus damages at the rate of Rs. 25 per cent, per annum on the same. We think that this contention would be sound if the deposit was a valid deposit within the meaning of Section 61. In the case of Sivhar Roy v. Ramesivar Singh  15 Cal. 166, Sir Comer Petheram, Chief Justice, held that the words in Sections 61 and 62, Bengal Tenancy Act, have no relation whatsoever to the amount of relit justly due and payable but only to such rent as the tenant at the time of the deposit considers to be the rent due and payable. This view was adopted by Justice Sir Asutosh Mookerjee in the case of Sasi Bhusan Dey v. Umakanto Dey  19 C.W.N. 1143, where the learned Judge observed as follows:
But the provisions of Section 61 must be taken along with those of Section 62. Sub-section 2 of Section 62 provides that a receipt given under that section shall operate as an acquaintance for the amount of rent payable by the tenant and deposited as aforesaid in the same manner and to the same extent as if the amount of rent had been received by the landlord or the person entitled to receive it. This provision has obviously an important bearing upon the question raised before us. The legislature has provided that once a receipt has been given by the Court after a deposit has been made, the receipt operates as an acquaintance, not for the whole amount due, but for the amount of rent payable by the tenant and deposited as aforesaid, in the same manner and to the same extent as if that amount of rent had been received by the landlord. The effect clearly is to make the amount deposited operate as a part payment of the sum actually due.
6. Our attention, however, has been drawn to the case of Sati Prasad Garga v. Manmatha Nath Kar  18 C.W.N. 84, where the learned Judges took a view contrary to the two cases referred to. In that case the tenant, under Section 61, deposited a sum which was ultimately proved to be much less than the amount really due and it may be said that under the special circumstances of that case there was no bona fide deposit under Section 61 inasmuch as a sum of more than Rs. 2,000 was actually duo and the tenant had deposited less than Rs. 1,000 and no suggestion appears to have been made that this was attributable to a bona fide dispute' between the parties as to what was d le at the time. In the present case, it is said the difference between the deposit and the amount due was indeed very small and it has been said that this was due to a bona fide dispute as to the amount of the cess. In the circumstances of the present case we hold that the deposit was a valid deposit within the meaning of Section 61 and operated as an acquaintance not for the whole amount due but for the amount of rent payable by the tenant and deposited in the same. manner-and to the same extent as if the amount of rent had been received by the plaintiff.
7. The result, therefore, is that the decrees of the Courts below, except with regard to costs, are discharged and there will be a decree against the defendant for the sum of Rs. 7-4 annas 16 gandas with damages at the rate of 25 per cent. The aggregate sum will carry interest at the rate of 6 per cent, per annum. The defendant-appellant will have her costs in this appeal but the order of the Courts below with regard to costs in favour of the plaintiffs will stand.
8. I agree.