JUDGMENT 1. This is an appeal against a decision of the Subordinate Judge, dated the 7th February 1907. The appeal arises out of a suit brought to recover, with interest, the minimum royalty due under a kabuliyat executed by the Defendant No. 1 in favour of the Plaintiff. The claim is laid at Rs. 38,960. 10 as. 6 pie. 2. The facts of the case are as follows :-- The Plaintiff is a zemindar, who is the owner of certain lands in which coal is found. He leased by a deed, dated the 19th July 1899, certain sub-soil rights in the lands owned by him. The lease conveyed a mokurari mourasi tenure. It was stipulated in the kabuliyat executed by the Defendant No. 1, Bhola Nath Das, that he was to pay a certain royalty (Rs. 8,400 per annum) for the raising of coal. Then there was stipulation that "if in any year, I sell a very small quantity of coal, or he unable to sell any quantity of coal at all in any year, owing to the market rate of coal being very low, or owing to the absence of purchasers of coal, or for any other reason, then, by giving you notice two months before, I shall not pay you more than Rs. 6,000 as minimum royalty for that year. The amount of minimum royalty shall be due each year on the 30th Choitra." 3.The Plaintiff now sues for the royalty at the rate of Rs. 8,400 per annum for the years 1309, 1310, 1311 and 1312. 4. The defence is that the Defendants Nos. 1 and 2 (the Defendant No. 2 being assignee of the interest of the Defendant No. 1) had given notice to the Plaintiff that the latter was not entitled to a royalty of Rs. 8,400, but to the minimum royalty of Rs. 6,000 per annum. 5. The Subordinate Judge had found in favour of the Plaintiff. 6. The Defendants appeal;. and on their behalf the following pleas have been raised :--First, that the Plaintiff is not entitled to get more than a minimum royalty of Rs. 6,000 per annum; secondly, that the Defendants are entitled to a deduction of the land encroached upon by the East Indian Ry. Co. and by Mr. 6. The Defendants appeal;. and on their behalf the following pleas have been raised :--First, that the Plaintiff is not entitled to get more than a minimum royalty of Rs. 6,000 per annum; secondly, that the Defendants are entitled to a deduction of the land encroached upon by the East Indian Ry. Co. and by Mr. Crete; thirdly that the kistibundi put forward by the Defendants is not binding on the Plaintiff; fourthly that the Defendant No, 1 is not liable at all, as he assigned his rights to the Defendant No. 2; fifthly, that a certain portion of the claim is barred by limitation; sixthly, that the Subordinate Judge has excluded certain evidence, viz, notices and correspondence and, seventhly, that the Defendants are not liable for interest and costs to the full amount, as they made a tender of a certain sum which was refused. 7. The first point we shall deal with is as regards notice. The notices relied upon are to be found in pages 23 and 26 of the paper-book. The first notice is dated the 13th February 1905 (1st Falgoon 1311). It is a notice given by the Defendant No. 2, and not by the Defendant No. 1. If it is of any avail it would only entitle the Defendant to pay the smaller amount of Rs. 6,000 for 1311. But it appears to us that this notice was not in terms of the kabuliyat, because the kabuliyat provided that the notice must be given two months before the date on which the royalty for each year was payable, the 30th Chaitra of each year. Now, the 30th Chaitra 1311 was the 12th April 1905. So the notice dated the 13th February 1905 is not full two months notice, but less than two months by one day. Therefore it is not valid and in accordance with the terms of the kabuliyat. The so-called notice at page 26 is a letter written by the Defendant No. 1 to the Plaintiff. It contains no notice at all. It does not make any reference to the terms of the kabuliyat, under which the Defendant No. 1 would be liable for Rs. 6,000 for any particular year. It says "I am trying my best to make a part payment at least at an early date. It contains no notice at all. It does not make any reference to the terms of the kabuliyat, under which the Defendant No. 1 would be liable for Rs. 6,000 for any particular year. It says "I am trying my best to make a part payment at least at an early date. I hope to get a good sum from one of my customers next week, when I will not fail to pay." This is no notice as required by the kabuliyat. 8. The next point is that the Subordinate Judge Is wrong in not holding the Defendant entitled to a deduction for the land encroached upon by the E I. Ry. Co. and Mr. Crete. There is, however, no evidence at all to show that the Defendants have been obstructed in any way in the raising of coal by these encroachments. The Company have run lines only over the surface, and there is nothing on the record to show that they have interfered with the working of the coal by the Defendants. Then, the report of the Commissioner deputed to enquire into the encroachments show that the encroachments by Mr. Crete, the Manager of the Basdebpur Colliery were entirely outside the land leased to the Defendants. 9. The third point is as to the kistibundi That is not binding on the Plaintiff, because the evidence shows that the Plaintiff refused to have anything to do with the kistibundi or to agree to it in any way. 10. The next point is that the Defendant No. 1 is not liable, because he assigned his rights to the Defendant No. 2. It appears to us, however, that according to sec. 108, cl. (j) of the Transfer of Property Act, the lessee is liable, even if he transfers his rights. The pleader for the Appellants says that this clause does not apply to permanent rights. But that is not so. It applies to all cases, in the absence of a contract or local usage to the contrary, and there is no evidence of a contract in this case, or of local usage. 11. The next plea is that part of the claim is barred by limitation. The Appellants say that the royalty in this case comes within the definition of rent and that, therefore, the period of limitation is that prescribed by Art. 110 of Sch. II of the Limitation Act. 11. The next plea is that part of the claim is barred by limitation. The Appellants say that the royalty in this case comes within the definition of rent and that, therefore, the period of limitation is that prescribed by Art. 110 of Sch. II of the Limitation Act. It appears to us that the article applicable is Art. 116, as laid down In the case of The Raniganj Coal Association v. Judoo Nath Ghost I. L.R. 19 Cal. 489(1892). That being so, the claim is not barred by limitation. 12. The next ground of appeal is that certain evidence of notices and letters was excluded. But we find that they were not attempted to be put in till after the close of the case, and then they were not proved. They are not sworn to by any one. They are private documents and do not prove themselves. They have, therefore, been properly excluded. 13. The last point is that a certain amount was tendered, which the Plaintiff refused to receive. It appears that a sum, not of Rs. 21,000, as the pleader for the Defendant says, but of Rs. 5,000 was tendered along with the kistibundi; and it was, of course, refused, because, if It had been received, it would have been treated as an acceptance of the kistibundi. So far as we can see, the Rs. 5,000 was not tendered by itself. It was tendered along with the kistibundi which the Plaintiff was not bound to accept. He never agreed to it. Therefore, in these circumstances, when the Rs. 5,000 were tendered with the kistibundi, the Plaintiff was entitled to refuse to receive the money, because he was not willing to agree to the kistibundi. On these grounds we are unable to Interfere with the decision of the lower Court, and we dismiss this appeal with costs.