1. The appellant in this case objects that the award (Exhibit 49), limiting the liability of defendant to one-eighth of the produce for khoti-nisbat land in Wanzole, was subject to the condition precedent that partition should be first elected. The respondent contends that this objection was not raised in the lower Courts and cannot be taken now. The judgment, however, of the Court of first instance, adapted by the lower Appellate Court, does not treat the award as concluding the parties, but after observing that it does not help the defendant at all, refers to it only as evidence corroborative of the defendant's statement as to the customary rate of that in respect of khoti-nisbat lands which the judgment states was left undetermined by the Settlement Officer in respect of the land in question. But the lower Court has found that, with regard to occupancy tenancies, the Settlement Officer has determined the share of that to be one-third for all khatedars, other than certain specified classes, to which defendant does not belong, and Section 8 of the Khoti Act of 1880 provides that tenants, other than occupancy tenants, shall hold their lands on the forms agreed upon between the Khoti and themselves, and in the absence of such agreement shall be held liable to payment to the Khot at the same rates as are paid by occupancy tenants. The plaintiff was not under the necessity of showing the award to be inapplicable as the lower Courts did not make it the basis of decision, and the defendant has not objected to their decision or shown that it could operate in the absence of partition, and the rate must, therefore, be determined in accordance with Section 8, i.e., in accordance with the rates fixed for occupancy tenants in Wanzole.
2. The decree of the lower Appellate Court is, therefore, amended and the plaintiff's claim to recover, for the year in suit, that at the rate of one-third is awarded in respect of the khoti-nisbat lands in Wanzole. There is DO dispute as to the amount of the produce held proved by Exhibit 31 in the judgment of the Subordinate Judge against whose decision the defendant has not appealed. The defendant is to pay all costs of this appeal.