1. The appellant in this case has my full sympathy, but I am unable to help him.
2. It appears that the respondent's father, who was an ex-proprietary tenant, sub-let the holding to the appellant. The respondent brought the suit, of which this appeal has arisen, for recovery of arrears of rent for three years. The defendant pleaded payment of five items and his plea of payment succeeded in the Court of first instance. On appeal the learned District Judge has allowed only one item and has disallowed the remaining four. So far as the question of fact is involved, viz., whether the appel has succeeded in proving payment, Court cannot entertain it. The question before this Court is whether two sums of Rs. 75 and Rs. 144-5, who were admittedly expended by the appellant, should have been given credit for.
3. The above-mentioned two items ??? paid in this way. The zamindar ??? decrees for rent against the ex-propriety tenant.
4. The non-payment of the ??? would have involved the ejectment only of the ex-proprietary tenant, but a of the appellant. The appellant ??? that he, having paid these two items order to satisfy the decree held by zamindar, was entitled to claim a set against the rent payable by ??? This would be so but for the provision Section 193, Clause (g) of the Tenancy Act. ??? that provision of law only an ??? decree held by a defendant can be plea by way of a set-off. It has been ??? that having satisfied the decree held the zamindar the defendant was placed the same position as the zamindar ??? self and was thereby entitled to claim set off. In my opinion it was with idea of simplifying procedure in rent ??? that the enactment viz., Clause (g), Section 193 of the Tenancy Act was drafted. ??? be the reason for the rule the rule its is clear, and it is only a decree held the defendant himself that can be pleaded and not a payment made under, the circumstances of this case.
5. The appeal fails and it is hereby missed under O. 41, R. 11 of the CPC.
6. Appeal dismissed.