1. The plaintiff is the Putnidar. The defendant in Darputnidar Under the terms of the document under which the defendant Darputnidar holds, Rs. 142 was fixed, to use the language of the document as the annual rent. The meaning, therefore, of this description of annual rent is that this money is primarily payable by the Darputnidar to his superior landlord, the Putnidar, But in conformity with a common arrangement entered into, to provide for cases in which the Putni is sold and the Darputnidar's interest thereby is in danger, it was arranged that of the sum, of Rs. 142 payable to the plaintiffs Rs. 112. should be paid by the Darputnidar to the superior landlord and the balance RS. 30 should be paid by the Darputnidar to his landlord, the Putnidar.
2. Now, the defendant expressly covenanted to pay this sum, and that sum has not been paid. The effect of the document is that the defendant must pay Rs. 112 to the plaintiff unless the defendant can produce a receipt from the landlord for that amount.
3. It was argued that the sum of Rs. 112 was not rent, because it was assigned to the landlord. There is nothing here which establishes the fact that the landlord released the Putnidar from his liability to pay rent. In the result the first ground upon which the appeal is based, fails.
4. The second ground, I think, has been made out. It is that the lower Appellate Court is wrong in not giving credit to the defendant for the amounts paid as revenue and cesses on behalf of the Zemindar. The lower Appellate Court rejected the defendant's claim to deduct the sum of Rs. 164-10-4 1/2 on the ground that it was a voluntary payment. This money was, it is said, paid into the Collectorate by the direction of the superior landlord of the plaintiffs. There is a clear finding that the defendant paid altogether Rs. 164-10 4 1/2 into the Collectorate as revenue and cesses due by Biseswari Dasi, the superior landlord of the plaintiffs. Cooking at this matter substantially the money was paid; to the plaintiffs, for the money was payable in the first instance, as I have already held, to the plaintiffs under the document, though by an arrangement between the Putnidar and the Darputnidar there was a direction that Rs. 112 of this money should be paid to the landlord. In this particular instance this was done, for what was done with the money subsequently and under the orders of the 'landlord, is immaterial. 1 hold, therefore, that this was not a case of voluntary payment, and I now proceed to deal with the other objections which have been raised.
5. It is said that the sum which I 'have mentioned Vas the sum due in respect of the 8, annas and not the whole 10 annas. But this argument appears to me to be disposed of by the finding of the learned Subordinate Judge to which I have referred. It has also been said that there is a difficulty in the way of our giving effect to this set-off, because, the kabuliat stipulated that no payments to the superior landlord of the plaintiffs should be recognised unless dakhilas were granted by the landlord; and it is said that there are no such dakhilas in the present case. In this particular case the fact of payment has been otherwise proved and it is found in the judgment that this took place and under the circumstances I do not see that 1 can or should ignore that fact.
6. The result is that the appeal is decreed to this extent, that appellant is entitled to a setoff of the sum of Rs. 464-10-4 against the amount of rent claimed. The decree of the lower Appellate Court will be( altered accordingly; in all other respects it will stand.
7. As regards costs the parties will be entitled to their costs in all the Courts up-to the High Court according to the degree of their success in this Court.
8. I agree.