T RAJARAM MEHTA Vs. NARAYANASAMI NAIDU

JUDGEMENT

(1.) The decision in this case turns On the question what is the meaning of the expression; "established usage" in Section 59 of the Estatesy Land Act? It runs thus: Rent shall be payable in instalments according to agreement or, in the absence of agreement, according to established usage. If the rent claimed was payable, as alleged by the plaintiff, on the last day of the fasli, the suit is within time; if, on the other hand, it was payable on the kistbandi dates as alleged by the defence, the suit is barred. In the Lower Court, it was argued, that as in the case of a valid custom, so in the case of usage, it is essential that it should be ancient. I cannot agree that the two words are synonymous; a usage need not possess the same degree of antiquity as a custom.

(2.) It is then contended, that the word "usage" must be understood as referring to the entire estate and the appellant relies for this position upon Hira Lal Das V/s. Mothura Mohun Roy Chowdhury (1888) I.L.R. 15 C. 714, a case dealing with Section 53 of the Bengal Tenancy Act. I am unable to agree with that decision. I fail to see why, when the section refers to rent, which, of course, must mean the rent of a particular holding, it must be assumed, that "established usage" mentioned, must be the usage of the whole estate. In this case, there is a finding, which cannot be attacked in second appeal, that according to the usage of the village, the rent is payable not at the end of the fasli but on the four kistbandi dates. But even that finding is, in my opinion, unnecessary, for the words "established usage" may be rightly construed as meaning, that of the particular holding with reference to which the question arises.

(3.) The second appeal is dismissed with costs (one set).