JUDGMENT 1. The amount at stake is not very large, being about Rs. 30. A preliminary objection has been taken to the hearing of the appeal, namely, that no appeal lies, because no question as to the amount of rent payable has been raised and decided. We think, however, that it may be held that there is a second appeal on this ground that there was a contention between the parties as to whether the rent was payable In kind or in money. Now, if the rent was payable in money, the amount payable would be a certain amount, and if in kind, as found by the lower Court, the amount payable would be different. That being so, it appears to us that a second appeal lies under sec. 153 of the Bengal Tenancy Act. 2. The learned pleader for the Appellants. has raised three pleas before us, first, that the Plaintiff has not proved collection of rent within 12 years; secondly, that the Plaintiff's predecessor admitted in a previous litigation, that the Defendants were liable to pay money-rent; and, thirdly, that the amount of interest, or damages which the lower Appellate Court has awarded is excessive and is not substantiated by any evidence There is, in our opinion, no force in the first of these pleas. It is settled law that non-payment of rent does not determine the relation of landlord and tenant. Now, it is found as a fact by both the Courts below that the relation of land (sic) namely, that the Plaintiff's predecessor admitted in a previous suit that the rent was payable in money, does not preclude the present Plaintiff from suing for rent in kind. The admission of the Plaintiff's predecessor in the previous suit is an admission and nothing more. It cannot operate as an estoppel, and is therefore no bar to the present Plaintiff's suing for rent in kind, which the lower Courts have found that the Plaintiff is entitled to do. 3. The third ground of appeal taken by the Appellants has some basis. It appears that the Plaintiff in his plaint claimed interest or damages on the rent payable in kind at the rate of 50 percent, on the ground that there was a custom or myain of paying damages at this rate. It appears also that the Defendants in their written statement traversed this allegation. It appears that the Plaintiff in his plaint claimed interest or damages on the rent payable in kind at the rate of 50 percent, on the ground that there was a custom or myain of paying damages at this rate. It appears also that the Defendants in their written statement traversed this allegation. But, as pointed out by the District Judge, the Defendants did not put their denial to an issue; no issue was framed upon the point, and it was not argued. The learned pleader for the Appellants, however, urges that the allowance of damages at 50 per cent, is against the provisions of sec. 67 of the Bengal Tenancy Act, for an arrear of rent payable in kind is an arrear of rent within the meaning of sec. 54, cl. (3), and the provisions of this clause would appear to apply to arrears of rent payable in money or payable in kind. Had the Plaintiff alleged in his plaint that by a contract between the parties, made before the passing of the Bengal Tenancy Act, the Defendants had agreed to pay damages at 50 per cent, on the arrears of rent, we might have remanded the case for the purpose of giving the parties an opportunity of adducing evidence upon the issue raised in respect of this plea. But the Plaintiff did not do so. He alleged custom only; and that being so, it appears to us that he is not entitled to a remand in this case, and, further that he is not entitled to damages at a higher rate than 25 per cent, under sec. 68 of the Bengal Tenancy Act. 4. We therefore modify the decree of the lower Appellate Court to this extent, that is to Bay, we allow the Plaintiff damages at 25 per cent, upon the arrears claimed by him, and not at Rs. 50 per cent., as decreed by the lower Appellate Court. The appeal is decreed accordingly with costs in proportion.