Basil Scott, Kt., C.J.
1. The only question in this appeal, now that the issues on remand have been decided, is whether the Khot can recover from the occupancy-tenant on the basis of a judicial estimate of the amount of rent payable. This depends upon whether the Court is precluded from arriving at what it considers the reasonable amount of rent by the provisions of Rule 8 of the Rules framed under Section 40(a) of the Khoti Settlement Act.
2. Now the only rent which, according to Statute the occupancy tenant can be liable to pay, is the rent as prescribed by Section 33(c) which for the purpose of this suit may be taken to be a crop-share, that is to say, a fixed proportion of the gross annual produce of the land and of the produce of fruit-trees, if any. How then is the gross annual produce of the land to be ascertained That is provided for by Section 40, which says that ' the Governor in Council, may by notification...from time to time, frame...rules not inconsistent with the...Act...for the inspection and appraisement of crops when the rent payable to a Knot consists of a share of the produce of a privileged occupant's land.'
3. Now Rule 8 of the Rules under Section 40(a) of the Khoti Settlement Act, referring to the provisions of previous Rules says that ' If the Khot fails to keep an Abhavni-patrak or to inspect or appraise the crop in the manner laid down in Rule I or to make an entry or to cause the same to be made therein in the manner hereinbefore provided, or to give information to the tenant in the manner provided in Rule 3 he shall be entitled to recover from the tenant such rent only as may be due according to the yield of the crop admitted by the tenant,' that is to say, the Rule provides for the two methods of appraisement of the crop: The crop may be appraised according to the provisions of the Rules: But if the provisions of the Rules for appraisement are not observed then there is one other appraisement which the Khot can have regard to for the purpose of determining the gross annual produce and that is the appraisement made by the tenant himself. In that view of the ease it appears to us that the Rule is intra vires and that the gross annual produce has not been settled according to either mode prescribed by Rule 8. The lower Court was wrong in trying to settle the question upon other materials.
4. We therefore reverse the decree and dismiss the suit with costs throughout.