PAZHANAN Vs. VISWANATHA PATTAR PATTAMALY

JUDGEMENT

(1.) This Second Appeal arises in a suit by the respondent, for the balance of rent alleged to be due to him for the year 1133 from the appellant. The appellant contended, that he had already paid rent for the year 1129 at the contract rate, & for the years 1130 to 1132 at the rate of 316 parahs of paddy and Rs. 6/- per annum, being the fair rent fixed by the Rent Court under S.16 of the Malabar Tenancy Act as amended by Act VII of 1954, that subsequently, after the Malabar Tenancy (Amendment) Act, 1956 (Act XXII of 1956) was passed, the fair rent has been refixed at 266 parahs & 6 edangalies of paddy per annum, and that therefore the payments made for the years 1129 to 1132 have to be reopened and the excess paid reappropriated towards rent for the year 1133. The first court gave effect to this contention, but in appeal the District Judge held that the payments which were all made before Act XXII of 1956 came into force, could not be reopened and so decreed the claim of the respondent. The question in Second Appeal is whether this view of the District Judge is right and can be maintained.

(2.) Learned counsel for the appellant relied on S.7 of Act XXII of 1956 which is in the following terms:-

(3.) It was contented, that the prior payments were made under a mistake of law, that whereas under law rent payable was only as fixed under Act XXII of 1956, rent paid was as fixed originally. At the time they were made, the payments corresponded to the fair rent as fixed and the parties were under no mistake about them. The right to amend that order has no bearing on the issue as to mistake. It may be, that where the original order fixing fair rent has to be enforced, the amendment may become material; but this is irrelevant. The Sales Tax Officer, Banaras v. Kanhaiva Lal Makund Lal Saraf AIR 1959 SC 135 and Sri Sri Shiba Prasad Singh v. Maharaja Srish Chandra Nandi AIR 1949 PC 297 were relied on. In the former, the order of assessment of sales tax, in pursuance of which payment was made, was held to be ultra vires the statute and in the latter, the Privy Council upon a true construction of the lease held, that the dues paid to the lessor were not justly or legally due to him. These have nothing in comparison with the case now before me, where the appellant was bound at the time to make payment of fair rent as fixed by the original Act and he paid it. In agreement with the view of the District Judge, I hold that the payment made for the years 1130 to 1132 by the appellant, cannot be reopened. The balance of rent due for the year 1133 is therefore payable by him to the respondent. The decree under appeal is affirmed and this Second Appeal dismissed with costs.