Rampini, J.@mdashThis appeal arises out of a suit for arrears of rent at the rate fixed by the Settlement Officers in 1891. The Plaintiff is a howladar and the Defendant a nim-howladar. Before the settlement, the Defendant had agreed to pay the Plaintiff Rs. 570 per acre for the land in his occupation. There was a written and registered lease. The Defendant agreed to pay a higher rate, if the rent of the Plaintiff who held a temporary settlement under Government was increased, or if any excess land was found to be in his possession.
2. A settlement was then made under sec. 104 (2) of the Bengal Tenancy Act before it was amended by the amending Act of 1898 and also under sec. 191. The Settlement Officer altered the rates of both the Plaintiff and the Defendant, found the Defendant to be in occupation of excess land and raised the rent to Rs. 1,000 per acre.
3. The Plaintiff has now sued for this rent. The first Court gave the Plaintiff a decree. The District Judge has set aside the decree. He has held that the Settlement Officer had no jurisdiction to settle the Defendant''s rent as under sec. 192 neither the landlord nor tenant had applied to him to do so. He has however himself fixed the rent properly payable by the Defendant at Rs. 850 and has given the Plaintiff a decree at that rate, holding however that much of his claim is barred by limitation.
4. The Plaintiff appeals. There has been much discussion before us as to the effect of sec. 192, whether it supplements or overrides the provisions of sec. 104 or applies to a settlement of a totally different character.
5. It does not seem to be necessary to consider these questions. It is clear that a settlement of the Defendant''s rent was rightly or wrongly made in 1891. The Defendant appealed to the Special Judge. He should have then taken the objection which he now takes as to the effect of sec. 192. But the order of the Special Judge, affirming the fair rent fixed by the Settlement Officer, has under sec. 107 the force of a decree and the matter is now res judicata and under sees. 109 and 109A now in force cannot now be re-opened.
6. I would therefore affirm the decree of the first Court in this case, instead of that of the District Judge.
7. The Appellant''s pleader further contends that the District Judge is wrong in holding that any part of the Plaintiff''s claim is barred by limitation. By an arrangement between the Plaintiff and the Defendant, the latter paid Rs. 754 annually to Government on behalf of the Plaintiff. Hence it is contended on his behalf that he, every year, appropriated Rs. 754 per acre to the rent of that year. This contention at first sight appears to be correct. But the provisions of sec. 55 of the Bengal Tenancy Act are very different from those of sec. 59 of the Contract Act. Under sec. 59 of the Contract Act the Court may have regard not only to the debtor''s express intimation, but also to circumstances "implying that the payment is to be applied to the discharge of some particular debt," Under sec. 55 of the Tenancy Act the debtor must declare the year or the year and the instalment to which he wishes the payment to be credited. If he does not do so, the payment may be credited to the account of such year and instalment as the landlord thinks fit.
8. In this case then, we cannot, I think, have regard to the circumstance of the payments made by the Defendant being for the revenue of particular years, which might have led to the inference that the payments were intended to be credited to the rent of those years. The Defendant unfortunately for him omitted to declare to the Plaintiff the years and instalments to which he wished the payments he made to Government for Plaintiff to be credited-and, accordingly, as held by the Munsif, the Plaintiff was under sec. 55 (2) of the Act at liberty to make up the account as he has done, and no part of the Plaintiffs claim would seem to be barred by limitation. I would accordingly decree this appeal with costs.
Woodroffe, J.
I agree.
