JUDGMENT
Jwala Prasad, J.
1. This appeal arises out of a suit brought by the landlords in respect of bhaoli rent due from the defendants for the years in suit. The plaintiffs claimed that the system of payment of rent was by danabandi or by appraisement of crop and that the landlords’ share in the produce was nine annas and the tenants’ share seven annas. The defendants case was that the system for payment of rent was batai or division of crop and that the share was half and half after deducting four seers per maund and that the rent for the years in suit was paid by actual division of the crops. It was also urged that the quantity of produce claimed by the plaintiffs in the years in suit was excessive.
2. The Courts below have concurrently held that the system for payment of rent was danabandi and not batai and that the landlords and the tenants’ share in the produce was half and half after deduction of four seers per maund out of the total produce and that the defendants’ plea of payment was not established. Both the Courts below believed the danabandi or appraisement papers filed by the landlords to be genuine showing the quantity of produce in the years in suit. The Munsif gave a decree on the basis of those papers after deducting 25 per cent thinking that the estimate might have leant towards exaggeration. The learned Subordinate Judge in appeal held that there was no justification for the Munsif to reduce the claim in such an arbitrary manner. He, however, reduced the claim on the basis of the reports of the crop cutting experiment of the Commissioner deputed in the present case to hold the experiment in connection with khesari crop as well as upon the report of the Commissioner (Ex. 10) deputed for holding crop cutting experiments in a previous suit in respect of paddy crop on the neighbouring lands.
3. The tenants defendants have appealed to this Court and, although in the petition of appeal various grounds were taken, the learned Advocate appearing on their behalf has pressed only one point, namely, that the system for payment of rent was batai nisf and not danabandi and he further says that the Courts below should have held that the rent for the years in suit was paid up. The landlords have filed a cross objection claiming that the Courts below should have allowed the landlords nine annas share in the produce and the tenants seven annas and that the damages of 12 1/2 percent, allowed by the Court below are too low.
4. As regards the system of rent batai or danabandi, both the parties have relied upon the Guide and Glossary to the Survey and Settlement Operations 1907 page 14, where batai has been defined to be “produce rent” which read with the remark against adhi means that where no other proportions are shown, the shares are half and half. It is not necessary to refer to the various sub-divisions of the batai system namely, batai nausata, batai nisf and batai tikuli. Bhaoli has been defined to be “produce rent.” In the remarks column it is stated strictly only applicable to the system under which the crop is valued or appraised before cutting and the landlord’s share is paid according to this appraisement and not to actual results of cutting. In North Bihar District bhaoli has frequently been used in the record as batai nisf. Danabandi has been defined as “apportionment of crop.” In the remarks column it is noted “vide remark against bhaoli.”
5. Now, the khatian of the Record of Eights of the village filed in this case shows that in some cases the words bhaoli danabandi have been noted; in others, the word bhaoli only and in two cases batai. Against the entries relating to the holding in question the entry in the Record of Eight is simply bhaoli, without mentioning whether it is danabandi or batai. If the word bhaoli used against the holdings in question in the khatian be interpreted strictly in accordance with the definition of the word bhaoli given in the Glossary, the system of payment of rent governing the holdings in dispute would be bhaoli danabandi inasmuch as these holdings are situate in one of the South Bihar Districts and not in a North Bihar District where according to the Glossary the word has frequently been used in the record as batai nisf. The fact that some of the holdings in the Record of Rights have been entered as batai also goes to show that the holdings in question are not governed by the batai system for they would then have expressly so stated in the Record of Rights.
6. The learned Subordinate Judge, however, has not gone upon the entry in the Record of Right alone but upon the evidence and circumstances in the case. He says: “The defendants-appellants have failed to adduce anyrebutting evidence to show that in the years prior to those in suit they or other tenants of the village had ever divided the crops half and half and they have not examined or called any independent neighbouring tenants to establish this as a fact”. It was not difficult for the defendants to prove that they had actually divided the crops and paid the rent under the batai system previous to the years in suit. On the other hand, the landlords have produced the danabandi or appraisement papers which have been believed to be genuine by the Courts below showing that the crops were appraised year by year. This lends great support to the contention advanced on behalf of the landlords that the system for payment of rent was danabandi and not batai. Viewed in this light the finding of the Court below on this point becomes a finding of fact and is not open to challenge in second appeal. Therefore, the contention of the learned Advocate on behalf of the tenants-appellants must be overruled.
7. There is no independent evidence adduced by the tenants-appellants to show that they had paid the rents for the years in suit, and the onus being upon them the Courts below were right in holding that the plea of payment was not established, It would be so when the system of payment was danabandi. This disposes of the appeal of the tenants, and the result is that that appeal is dismissed
8. The same would seem to be the result of the cross-objection on behalf of the landlords. It is a vain attempt on the part of the landlords to claim against the entries in the Record of Rights upon which they rely for their contention that the system of payment of rent was danabandi. The Record of Rights has definitely mentioned that the share of the landlord and the tanent in the produce was nisfa nisf (half and half). The presumption of the Record of Rights must, therefore, prevail, there being no satisfactory evidence to rebut it.
9. The Courts below have awarded damages at the rate of 12 1/2 per cent. This was within their discretion in the circumstances of the case, regard being had to the fact that the landlords claimed 9 annas share in the produce contrary to the entry made in the Record of Rights, they are not entitled to claim damages more than what the. Courts below have awarded to them. The learned Advocate on behalf of the landlords urged that the damages thus allowed would very much reduce the compensation to the landlords even below the interest of 12 1/2 per cent. allowed by Section 67 of the Bengal Tenancy Act. That section has no application to produce rent. It applies only to rentpaid in cash.
10. The result is that the cross-objection is disallowed. In the circumstances of the case there will be no order as to costs of the appeal or the cross-objection. Bach party will bear its own costs of this Court.
Rowland, J.
11. I agree.