JUDGMENT
G.N. Prasad, J.
1. This appeal by the plaintiffs arises out of a suit instituted by
them for recovery of arrears of rent in respect of six plots of land forming part of Sikmi Khata No. 3 appertaining to Raiyati Khata No. 47 of village Champapur. The plaintiffs claimed the rent at the rate of Rs. 7/- for each of the three years in suit, namely, 1368 to 1370 F.S.
2. The defendants denied the relationship of landlord and tenant between the plaintiffs and themselves and asserted that no rent was payable by them and never any rent had been paid by them.
3. The courts below have concurrently held that the plaintiffs are the landlords in respect of the Sikrni Khata No. 3 which originally belonged to Rabidutta Jha and is now held by his sons, the present defendants. The trial Court decreed the suit for rent at the rate of Rs. 7/- per annum as claimed and as mentioned in the Sikmi Khatian Ext. 1 appertaining to the Raiyati Khatian Ext. A.
4. The lower appellate Court, however, has held that the liability of the defendants for the rent of the Sikmi Khata in question must be governed by the provisions of Section 48 of the Bihar Tenancy Act, which are in the following terms-
“48. Limit of rent recoverable from under-raiyat.– The landlord of an under-raiyat holding at a money rent shall not be entitled to recover rent exceeding the rent which he himself pays by more than the following percentage of the same (namely):
(a) when the rent payable by the under-raiyat is payable under a registered lease or agreement–fifty per cent; and
(b) in any other case–twenty-five per cent:
Provided that, where the land held by such under-raiyat is a portion of the holding of such landlord, the rent calculated for the entire holding in the aforesaid manner shall be reduced in such proportion as the area of the land held by the under-raiyat bears to the total area of the holding:
Provided further that if the lands comprised in such holding are of different qualities, the proportionate rent recoverable from the under-raiyat shall be calculated in the prescribed manner.”
5. The lower appellate Court has pointed out that the total area of Khata No. 47 is 21 Bighas, 14 Kathas and 6 Dhurs and its jama as mentioned in the Khatian Ext. A is Rs. 26/-. As. O. Ps. besides cess. According to the lower appellate Court, therefore, the liability of the defendants for1 the Sikmi rent cannot exceed the proportionate amount of the rent of the Khata as mentioned in Ext. A plus a sum equivalent to 25 per cent of the said jama besides interest thereon at the rate of 6.25 per cent per annum. In other words, the lower appellate Court has made a direction to its office to calculate the proportionate amount of the rent of the entire holding, which can be attributed to the portion thereof, namely 2 Bighas and 5 Kathas comprised in Sikmi Khata No. 3 and to add to the jama thus arrived at a sum equivalent to 25 per cent thereof.
6. Mr. N.P. Agarwala appearing in support of this appeal contends that the liability of the defendants is a matter of contract between the parties and that finds incorporated in the Sikmi Khatian Ext. 1 and that must prevail upon any other consideration. In view, however, of the provisions of Section 48 of the Bihar Tenancy Act, which have already been referred to above, it is manifest that there is a statutory limitation to the amount of rent, which the landlord of an under-raiyat holding at a money rent can be entitled to recover by way of rent. Evidently, Section 48 must prevail irrespective of any contract that may have been entered into between the parties. The Khatian entry cannot supersede the statutory limitation contained in Section 48 of the Bihar Tenancy Act. The first proviso to Section 48 evidently applies to a case like the present where the land held by the Sikmidars is only a portion of the entire holding. I am, therefore, of the opinion that the lower appellate Court was right in directing a calculation to be made in accordance with the provisions of the first proviso to Section 48 of the Bihar Tenancy Act.
7. For the aforesaid reasons, I uphold the decision of the lower appellate Court and dismiss the appeal, but in that circumstances without costs.