1. This and the connected appeals, 1944 to 1947, arise out of very similar facts and will be disposed of by the same judgment. The plaintiff-appellant is the same in each case and the respondents represent five groups of fishermen each group owning a boat used for the purpose of fishing.
2. The plaintiff's case, as stated in the plaint, was that in the village of Sadiapur in the district of Allahabad the defendants who were fishermen by caste and profession carried on the profession of plying boats, catching fish and selling them. In para. 3 the plaintiff puts his case as follows:
The defendants live in the said village. They ply boats and catch fish in the Jamna and land the fish and sell it at the ghats in the said village.
3. Then the plaintiff says that according to the village custom and conditions laid down in the wajib-ul-arz, all the fishermen in the village deliver 1 seers of Rohu fish per boat per day to the zamindars as rent. The plaintiff then says that the village is divided into two mahals and that he is the owner of the 10 annas mahal. The plaintiff accordingly calculates the value of arrears of rent and claims different amounts against different sets.
4. The defendants, in their written statement filed on 7th April 1922, admitted para. 3 of the plaint quoted above but denied their liability to pay rent at the rate aforesaid. Subsequently the defendants filed a further written statement and in it pleaded that what the plaintiff claimed was in the nature of a cess and could not be recovered in a Court of law. In the original written statement they admitted their liability to pay something to the zamindars although they denied that the rate was the same as was claimed by the plaintiff. In the further written statement filed they did not add anything as to their liability to pay beyond the fact that they pleaded that no cess was recoverable in a Court of law.
5. The suits were filed in the Court of a learned Assistant Collector and he framed no less than eleven issues. None of the issues indicated that the defendants denied their liability at all except on the ground that it was a claim for cess and therefore not recoverable in a Court of law. On the question of fact their only plea was as to the rate and this formed the subject-matter of issue 1. The learned Assistant Collector decreed the suit and the fishermen appealed. The plea was repeated that what was claimed was cess and was not recoverable because it was not recorded at the last settlement. The ninth ground of appeal was that in any case the plaintiff was not entitled to claim more than Rs. 20 a year (per boat).
6. The learned District Judge on appeal came to the conclusion that what was claimed was in its nature cess and as it was not described as payable in the last settlement records it was not recoverable at all. As to the rate payable by the fishermen the learned Judge was of opinion that the plaintiff had failed to prove that anything more than Rs. 20 per boat per annum was recoverable by him. The learned Judge said:
Had it been permissible to pass a decree at all, I should have passed a decree at that rate.
6. On the question of the defendants liability to pay something the learned Judge said:
There is no contention to that effect.
7. As I have already shown above this remark is correct. The defendants never denied their liability to pay something.
8. The main question that has been raised in this appeal is whether what was sought to be recorded was in its nature a cess or a rent.
9. The basis of the claim, according to the plaintiff consisted of the facts stated in para. 3 of the plaint. The facts were that the defendants lived in the village, they plied boats and caught fish in the Jamna and landed the fish and sold the same on the ghats of the said village. These facts being admitted the learned District Judge need not have taken the trouble to analyze the evidence and to find out whether the ghats were or were not within the four corners of the divided share of the plaintiff. The learned Judge remarked that the plaintiffs were not the owners of the river Jamna. That is perfectly true, but that was not the only ground on which plaintiffs claimed rent. The defendants live on the village land. They utilized the ghats for landing fish and they sold the fish in the village. Thus the defendants were deriving benefit from the plaintiffs' zemindari and the question was whether they were liable to pay something or not for this use of the plaintiffs' land. Such being the nature of the plaintiffs' case, it is abundantly clear to me that what was claimed was 'rent' as it was expressly stated, in para. 4 and not a cess. A compensation which is demanded for use and occupation of land is not a cess but rent: see Muhammad Faiyaz Ali Khan v. Behari  40 All. 56; see also Sadanand Pande v. Ali Jan  32 All. 193. The case in Muhammad Faiyaz Ali Khan v. Behari  40 All. 56 is an authority for the proposition that what the fishermen paid for the village lands was really based, in the dim past, on a contract and in course of time the realization of the rent was regarded as a customary due. In the case of Sadanand Pande v. Ali Jan  32 All. 193, it was held that market dues and tolls which were really payments for use of land could be realized through Courts without regard to the provisions of Sections 56 and 86, Agra Land Revenue Act. The case of Balwant Singh v. Shankar  30 All. 235 is also applicable to the case. Their Lordships of the Privy Council recently had to consider the difference between a rent and a cess. Their Lordships held that what was paid as a matter of agreement for land used was really a rent and not a cess: see Chhattar Kumari v. Broucke .
10. On the facts, therefore, and on a correct view of the law, it is abundantly clear to me that the claim was one for rent and not for cess as that term had been used in Sections 56 and 86, Land Revenue Act.
11. As to the amount for which the defendants are liable I must accept the finding of the learned Judge which is to be treated as a finding of fact. It appears that there was a previous litigation between the plaintiff and 13 of the fishermen and in that case the defendants had pleaded that by an agreement between the parties the payment, in kind, of the rent had been commuted into a payment in cash namely, of Rs. 20 a year payable in the month of October of each year: see S.A. No. 1257 of 1920. It was evidently on the basis of this statement and on the basis of the ground of appeal in this case already mentioned that the learned Judge came to the conclusion that if the plaintiff could succeed at all he was entitled to recover at the rate of Rs. 20 a year per boat.
12. In the course of the argument the question arose whether the defendants' plea was that they were liable to pay Rs. 20 a year to the plaintiff alone or to the entire body of the zamindars of the village. In my opinion the ninth ground of appeal leaves no room for doubt that the defendants offered Rs. 20 a year to the plaintiff-appellant alone. I have consulted the 'other proceedings' referred to in the judgment of the lower appellate Court, namely, the written statement of the defendants in S.A. No. 1257 of 1920, and I am satisfied that the defendants pleaded that they had agreed to pay Rs, 20 to the plaintiff alone and not to the entire 16 annas cosharers. I have already said that there is no issue as to the liability of the defendants. The only question was as to the rate of liability.
13. The result is that this appeal succeeds in part. I set aside the decree of the Court below, modify the decree of the Court of first instance, and instead of the decree of the Court of first instance I award to the plaintiff a decree for arrears of rent at the rate of Rs. 20 a year against each set of the defendants. In preparing the decree the office will consider the period in suit and calculate the amount due up to the date of the decree. Each case, it will be remembered, is confined to one boat. Interest on the arrears so found will be calculated at the rate of 1 per cent. per mensem, till the institution of the suit. After the institution of the suit interest will be paid at the rate of 6 per cent. per annum till realization. The parties will pay and receive costs in proportion to their respective failure and success throughout.