1. This appeal arises out of a suit for rent and also for a declaration that the plaintiffs are entitled to additional rent for additional area. Only two points have been urged in this appeal. The first is that the lower Courts were wrong in refusing the plaintiffs' interest at the rate of 75 percent, stipulated for in the kabuliyat. The second point is that the lower Appellate Court is wrong in reducing the enhancement of rent which had been granted by the first Court. The kabuliyat in this case was executed in the year 1874 before the passing of the Bengal Tenancy Act. The lower Courts have held that the stipulation for interest at that rate is penal and consequently instead of interest, allowed the plaintiffs' damages at 25 per cent. We are unable to agree with the finding that the stipulation for payment of interest at that rate is penal. But we hold that the plaintiffs' claim on this point failed on another ground. The kabuliyat in this case appears to be in all its essential terms similar to the kabuliyat which was considered in the case of Annada Charan Ray v. Girindra Kumar Bandopadhaya 87 Ind. Cas. 178 : 41 C.L.J. 453 : (1925) A.I.R. (C.). In that case it was held that the stipulation for payment of interest at the rate of 75 per cent. could not be taken to be penal. But though the ground of the decision of the Courts below was held to be unsustainable that decision that the claim for interest could not be enforced, was upheld on a different ground. It was held there that as the Bengal Tenancy Act came into operation when the tenants did not acquire the rights of an occupancy raiyat the claim must be governed by the provisions of the Bengal Tenancy Act and that under Section 67 of the Bengal Tenancy. Act the plaintiffs were not entitled to recover more interest than what was fixed by that section. We can see no ground on which the facts of the present case can be distinguished from the facts of that case and following that decision we must hold that the claim for interest at the rate of 75 per cent. per annum on the arrears of rent cannot be enforced.
2. As regards the second point urged the kabuliyat provides for payment of rent, at Rs. 37-15-0 per annum and for payment of other sums on other accounts. These are all amalgamated into a fixed jama of Rs. 41-8-6. The lower Appellate Court reversing the decision of the first Court on this point calculated the additional rent payable for excess assessable area on the basis of a rental of Its. 37-15-0. On consideration of the kabuliyat we think that the lower Appellate Court was right. The word used for describing the rent as Rs. 87-15-0 is khajana. The word referring to the total rent payable is used in another place as jama and elswhere as malguzari. Now in the condition to, pay excess rent for lands subsequently found to be culturable the word used is khajana and we think that this indicates that the excess rent was to be assessed on the basis of the khajana of Rs. 37-15-0 as found by the lower Appellate Court.
3. The appeal is dismissed with costs.
4. The cross-objection taken on behalf of the respondents is not pressed and is dismissed.
5. We make no order as to costs in the cross-objection.