Sibuarayan Sah and others vs Maisa Tada Prodhan and another

Coutts, J.—This is an appeal in respect of a rent suit brought in the Santal Parganas. The suit was by the proprietors against the Prodhan for arrears of rent for 1325 and 1326 Fasli. The defendants pleaded payment.

The Court of first instance found that arrears of rent for these years, except for a small amount of Rs. 188-13-9, had been paid but that the plaintiffs credited the payments to arrears which they said were due for previous years which they were not entitled to do. This decree was upheld on appeal to the learned District Judge except that he has found that the calculation of the learned Subordinate Judge was wrong and he decreed the suit for Rs 465-7-9 1/2 with Rs. 42-11-0 as interest. The plaintiffs have appealed and the contention made on their behalf is that they were entitled to credit the payments to arrears of previous years.

Both the Court below have found that by the law which applies in the Santal Parganas, payments of rent must be credited to current kists unless there is an express agreement to the contrary. The learned Vakil for the appellants has very strongly contended that there is no such special law and that S. 61 of the Contract Act applies. Neither the learned District Judge nor the learned Subordinate Judge has given us his authorities for holding that S. 61 of the Contract Act does not apply, but it is unnecessary to consider the point, because the appeal fails on another ground, namely, that both the Courts below have disbelieved the accounts filed by the plaintiffs and have found that they have failed to establish what the arrears for previous years were. When the plaintiffs credited the payments to arrears alleged by them to be due for previous years it was certainly for them to establish that arrears were due and what the amount of the arrears was; and, having failed to do this, they were not entitled to credit the payments as they have done. The appeal therefore fails.

A cross-appeal has been filed to the effect that the calculation of the learned District Judge is not correct. I fail, how ever, to see anything wrong in the calculation. The cross-appeal therefore also fails. I would accordingly dismiss both the appeal and the cross-appeal with costs.

Adami, J.

I agree.