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Judgment
Venkatasubba Rao, J.—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.
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. Mothura Mohun Roy Chowdhury ILR (1888) 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.
The second appeal is dismissed with costs (one set).
I have been asked to fix the counsel''s fee owing to the fact that numerous appeals have been consolidated and I accordingly fix it at Rs. 150.
The appellants'' counsel asks me to leave it open to him to enforce his right, if any, against the 1st defendant, on the ground that the rent properly
belonging to him was wrongly received by the latter. I wish to make it clear that my judgment is not intended to affect any such right.