1. In this case the plaintiff respondent brought a suit under Clause (g) of Section 93 of the North-Western Provinces Rent Act, 1881, to recover from the defendants, who are appellants here and whom she describes as inferior proprietors, arrears of revenue alleged to be due from them for the years 1299, 1300 and portions of the years of 1298 and 1301 Fasli. The Assistant Collector dismissed the claim, which was for Rs. 42-8-6. On appeal the Collector of the district confirmed the decree of the Court of First Instance. The plaintiff then appealed to the District Judge, who gave a decree in favor of the plaintiff. The defendants appeal to this Court against, the decree of the District Judge.
2. The first ground relied on is that no appeal lay to the District Judge with reference to the provisions of Section 189 of the Rant Act. In my opinion this plea is valid. An appeal lies to the District Judge in cases in which the amount or value of the subject-matter exceeds Rs. 100. The case before us admittedly does pot come under that category. Next, an appeal lies in cases in which the rent payable by the tenant has been a matter in issue and has been determined. The learned Counsel for the respondent contends that he is entitled to take advantage of this clause of Section 189. Section 93 of the Rent Act, Clause (a), provides for suits for the arrears of rent: Clause (d) provides for suits for any overpayment of rent: Clause (g) provides for suits by lambardars, for arrears of Government revenue payable through them by the co-sharers whom they represented and for village expenses: Clause (i) provides for suits by muafidars or assignees of the Government revenue for arrears of revenue due to them as such: Clause (j) provides for suits by taluqdars and other superior proprietors for arrears of revenue due to them as such: Clause (k) provides for suits by recorded co-sharers to recover from a recorded co-sharer who defaults arrears of revenue paid by them on his account. Thus we have in Section 93 a distinction drawn between suits for arrears of rent and suits for arrears of revenue. The learned Counsel for the respondents argues that the word “rent” in Section 189 includes also “revenue.” I should be glad if I could so hold. I see no reason why the Legislature should have made appealable to the District Judge a decision in a suit in which the rent payable by a tenant bad been determined as a matter in issue and given no right of appeal in the equally important case in which the revenue payable by an inferior proprietor had been a matter in issue and had been determined. But the right of appeal is a creation of statute and must not be assumed to exist where it has not been clearly given by the Legislature. The learned Counsel for the respondent has referred me to Section 4 of the Rent Act, in which the payment by a person intermediate between the proprietor of the mahal and the occupants of the land is indirectly referred to as rent. I asked the learned Counsel for the respondent who were the occupants of the land in suit. He stated first that the defendants were the occupants, and then that there was no evidence in the record to show whether they were or were not persons intermediate between the proprietors of the mahal and the actual occupants. This being so, I do hot think the terms of Section 4 can assist him, and, in any case, seeing that the Legislature in the section, describing the various classes of suits which are cognizable by the Revenue Courts, speaks of some as suits for arrears of rent and of others as suits for arrears of revenue, I cannot hold that the word “rent” in Section 189 was used in a general sense to include revenue also.
3. The learned Counsel for the respondent argued that, if the suit did not fall within the second category, it might be looked on as a quit in which the proprietary title to land had been determined between the parties making conflicting claims thereto. I do not think the circumstances of this case are such as to bring the suit within this category. The sole question is whether under an old agreement of 1836 the appellants are liable to pay a certain sum yearly to the plaintiff on account of the land revenue which the plaintiff pays to Government Both the parties are at one in asserting that the defendants are inferior proprietors of the land all that has been determined in this case is whether, by a contemporaneous agreement entered into when the land was sold by the predecessor in title of the plaintiff to the predecessor in title of the defendants, the vendee did or did not covenant to pay in a certain event a proportionate amount of the Government revenue. I cannot hold that the determination of this issue one way or another was a determination of the proprietary title to land.
4. For the above reasons I hold that no appeal lay to the District Judge. I allow the appeal to this Court, and setting aside the decree of the Court below, restore the decree of the Collector of the District. As the plea upon which the appellants have now succeeded was not taken in the Court below, parties will bear their costs in this Court and in the Court below.