Robert Stuart, C.J., Turner, Spankie and Oldfield, JJ.
1. This suit falls to be decided under Act X of 1859. By the third section of that Act it was declared that ryots who, in the provinces therein mentioned, hold lands at fixed rates which have not been changed since the permanent settlement, are entitled to receive pottahs at those rates. This provision was introduced to give effect to the design announced by Government, when it established the permanent settlement, that the ryot as well as the zamindar should derive benefit from the boon. There is nothing in the section which limits its operation only to ryots who pay rent in cash. Ryots who pay rent in grain may, therefore, claim the privilege, if they can establish that the rates at which they have held their lands are fixed rates. In the case suggested the laud is held on the terms that the tenant shall render to the landlord in each year a fixed share of the crop. The quantity of produce delivered may vary in each year, but the rate or share remains the same, be it a fourth or a third or a half, as the case may be. The rate of rent does not vary, although its quantum or value may. If then the tenant proves that no alteration in the rate has been made since the permanent settlement, or entitles himself to the benefit of the presumption declared in Section 4 of the. Act, he may demand a pottah at these rates as fixed rates.
2. On re-consideration I am of opinion that the ruling Yacoob Hossein v. Wahid Ali 4 W.R. Act X Rulings 23 : S.C. 1 Ind. Jur. N.S. 29 which was followed in Hanuman Parshad v. Ramjug Singh H.C.R. N.W.P. 1874 p. 371 is not maintainable in reference to the terms of Sections 3, 4 and 5,* Act X of 1859. Sections 3 and 5 show that the word ' rent' used in Section 4 means the rate of rent, and whether or not the Legislature when enacting these sections had in view a rent paid in the shape of a proportion of the produce, it is impossible to hold that the terms used will not include such a rent as well as a money-rent, and that a ryot in the Province of Benares who claims to hold at fixed rates, and proves that he has for a period of twenty years before the commencement of a suit paid as rent the same proportion of the produce of his holding, is not entitled to the presumption which Section 4 declares.
*[Section 5: Royts having rights of occupancy, but not holding at fixed rates, as describe
in the two preceding sections, are entitled to receive pottahs
Ryots having right of at fair and equitable rates. In case of dispute, the rate
Occupancy, but not hold- previously paid by the ryot shall be deemed to be fair and
ing at fixed rates, to receive equitable, unless the contrary be shown in a suit by either
pottahs. Party under the provisions of this Act.]