JUDGMENT Verma, J.
1. This is a second appeal by the plaintiff zamindar against a decree of the learned District Judge of Ghazipur by which the claim of the plaintiff for arrears of rent for 1340 and 1341 Fasli, so far as it related to an enhanced rate on account of the growth of sugar-cane, was disallowed by the learned District Judge. The issue in question was as follows:
Whether the custom of Beshi rent for sugar-cane is applicable to exproprietary tenants or not, if so, what will be the proper rent ?
2. The plaint set out that the exproprietary rent apart from this claim for sugar-cane was Rs. 92-6-0 and the amount of exproprietary rent was not in dispute. The plaintiff claimed that owing to sugar-cane cultivation, there was Rs. 56-14.0 in addition duo for 1340 Fasli and Rs. 14-15-0 due for 1341 Fasli. The trial Court, the Assistant Collector, First Class, held that the custom applied to exproprietary tenants and that the rate was Rs. 6-12.0 per bigha and he allowed Rs. 33.6-0 for 1340 Fasli and Rs. 10-3-0 for 1341 Fasli. Now the finding of the Court below that no custom is proved to apply to exproprietary tenants is a finding on a mixed question of fact and law and in second appeal this Court sometimes interferes on the ground that the evidence for the custom is so considerable that the lower Appellate Court should have found that the custom was proved. In the present case the lower Court's judgment sets out that the plaintiff relied on the report of Mr. Roberts. That report, dated 1886, is for the year 1882-1885 on the Revision of Records of part of Ballia District. On p. 83 in regard to the pargana in question, Kopachit (west), the report states:
6. SPECIAL CUSTOMS.--In this pargana and in Kharid it has always been the custom to charge a special rent-rate on sugar-cane cultivation. There is an indication of this custom in the rates noted for Kharid at the time of the permanent settlement quoted ante: vide pargana notice on Kharid, para. 30. This special rate is not uniform and varies in different villages ; but the more ordinary rule is that, for the first year when the land is fallow and prepared for cane, no rent is paid, and the second year when the crop is grown the namindar realizes the whole of the rent for two years plus one-half of that amount as beshiukh, increase for sugar-cane, or, in other words, three times the ordinary rent is collected at the end of the second year. If cane is grown without a previous fallow year, 1J times the rent is collected for that year.
3. In regard to pargana Kharid, the report states as follows, on p. 97:
30. SPECIAL CUSTOMS.--The same custom obtains hero as in Kopaohit respecting enhanced rates for sugar-cane, but only in the western tappas, Maniar, Sukhpura, Majhos, Balupur and Bansdih. In Maniar the ordinary rule is an increase of Re. 1-8-0 per bigha, in the other tappas the rates vary up to Rs. 8 per bigha and the rate includes the rent for the year of fallow. In Maniar there is a similar enhanced rate on poppy cultivation of Rs. 2 per bigha.
4. Now these notes of special custom in regard to sugar-cane do not state to what tenants the custom applied. It is true that in Section 7, North-Western Provinces Rent Act (12 of 1881) there was provision for exproprietary tenants and the provision was that they should hold as occupancy tenants at a rent which shall be four annas in the rupee less than the prevailing rate payable by tenants-at-will for land of similar quality and with similar advantages. The judgment of the Court below states that the patwari proves that in the particular village in question exproprietary tenants have only come into existence in the last six or seven years. The paragraphs in the report of Mr. Roberts in regard to this pargana and parts of pargana Kharid do not refer to exproprietary tenants or any other class of tenants as the persons who are bound by this custom. The Court below came to a finding that such a custom would not apply to exproprietary tenants. The Court also pointed out that the report of Mr. Roberts in regard to a custom in the pargana gene, rally and parts of the adjoining pargana did not stand on the same level as the wajibularz, and there is no proof of a record of any such custom in the wajibularz for this village or for any other village. No other evidence was tendered on behalf of the plaintiff. On the other hand, the patwari gave evidence that no such additional rent on account of sugar-cane cultivation had been collected in his presence in this village where he had been a patwari for 13 or 14 years. It is clear therefore that the finding of the Court below that the custom has not been proved was in accordance with the weight of evidence and it will be quite impossible for this Court in second appeal to reverse such a finding.
5. Learned Counsel for the appellant relies on a judgment in revision of the Board of Revenue on Petition No. 48 of 1935-36 between the same parties and he states that it is in regard to the same exproprietary holdings. The judgment was delivered on 6th August 1937 and 17th August 1937. But the judgment is in regard to the year 1342 which is subsequent to the two years now in suit which are 1340 and 1341. This therefore is not a case where the rate which has been found legally for the previous year to the years in suit could be applied. The judgment of the Board of Revenue sets out that certain judgments were produced in that case which showed that even fixed rate tenants had to pay in other villages in the pargana. The Board set out that there was no analogy between the position of a fixed rate tenant and of an exproprietary tenant. In regard to the argument that the rent was fixed by Court for an exproprietary tenant and that the Court was not asked to take this 'beshiukh' into consideration, the Board observed that the Court could not do so under Section 36, Land Revenue Act. Learned Counsel is unable to indicate why the Collector could not direct in his order under Section 36, Land Revenue Act of 1911, that in addition to the rent of Rs. 92-6-0 fixed by him the tenant should pay a further rate per bigha in case he cultivated sugar-cane, We are unable to MOO why such an order could not be passed in an order fixing the exproprietary rent, if such extra rent were legally payable, a point which we discuss later. It is admitted it hat no such order was passed. In the present case therefore, there is a judicial decision between the parties that the exproprietary rent should be Rs. 92-6-0. The claim of the plaintiff that in addition to the rent so fixed some further rent should be held to be due in a suit for arrears of rent is clearly a claim which cannot be sustained. Whatever right the plaintiff may have had to additional rent should have formed the subject of the claim of the (plaintiff before the Collector when the Collector fixed the rent under Section 36, Land Revenue Act. We consider that the principle of Section 11, Explanation 4, Civil P.C., would apply to bar the claim now put forward by the plaintiff, and this Section applies under Section 264, Tenancy Act. There are provisions in the Agra Tenancy Act (No. 3 of 1926) for a suit for the enhancement of the exproprietary rent. It is open to the zamindar to make such a claim in such a suit; but he cannot, in our opinion, make such a claim in a suit for arrears of rent, as Section 47 provides that the rent shall be presumed to be the rent previously payable until varied by registered agreement or order of the Court. The present proceeding began with an application under Section 81, Agra Tenancy Act, for a notice to issue from the Tahsildar and on the contest of the tenant under Sub-section (5) the application was deemed to be a suit for arrears of rent.
6. We may also point out that the provisions in regard to exproprietary rent have boon somewhat altered in the present Agra Tenancy Act. Under the U.P. Act (2 of 1901), Section 10, the provision was that the exproprietary tenant should hold at a rent which shall be four annas in the rupee less than the rate generally payable by non-occupancy tenants for land of similar quality and with similar advantages in the neighbourhood.
7. Under the U.P. Act (3 of 1926), Section 14, Sub-section (1), the exproprietary tenant holds at a rent which shall, subject to the provisions of Section 49, be two annas in the rupee less than the rate prescribed for occupancy tenants in Section 59.
8. Now Section 59 prescribes the rates which are sanctioned until the next roster year and these are fixed rates for a definite period of time. The exproprietary tenant therefore has a right to hold at a rent which is calculated on certain fixed rates. Unless those fixed rates included provision for extra rent on the ground of sugar-cane cultivation, the exproprietary rent could not legally include such extra charge for sugar-cane cultivation. For these reasons we consider that, with due respect to the Board of Revenue, we cannot agree with the decision of the Board. In the present case we uphold the decree of the Court below and dismiss this second appeal with costs.