1. This first appeal was brought by two defendants, Din Dayal and Debi Dayal, who were brothers forming a joint Hindu family, and Debi Dayal died; so the case was continued by Din Dayal alone as sole representative of this joint family. The appeal is against a decree of an Assistant Collector, First Class of Mirzapur District which has been passed against the appellants for excess profits as a cosharers in favour of plaintiffs cosharers. The decretal amount held to be due from the defendants-appellants for the Fasli years 1330 to 1332 was Rs. 3,077-10-2, that is roughly about Rs. 1,000 per annnm. It is in evidence that this village has practically no cash rents prevailing and rents are calculated at one-quarter of the gross produce of the land. The plaintiff's are not in possession of any cultivated area and only collected small amounts of rent amounting to about Rs. 200 per annum. The share of the plaintiffs in 1330 F were 9 annas 8 pies and in 1331 and 1332 8 annas 4 pies. The questions which have been argued before us are three in number: firstly, whether the rate at which the plaintiffs should be found liable for excess profits should be taken to be the same as the one-quarter gross produce which is the rental for the great majority of occupancy and non-occupancy tenants in this village or whether it should be taken as the lower Court has taken it on a calculation of the net income from the cultivation of this excess area, and secondly, whether this question is res judicata in view of a previous judgment of the Assistant Collector upheld by this Court on appeal. There is also a further question as to whether certain areas cultivated by the defendants, entered as non-occupancy tenure for over 12 years and occupancy tenure, ought to be considered as land, held by the defendants as tenants or as land held by the defendants as khud-kasht
2. We will first deal with the question of res judicata. In the previous suit before the Assistant Collector, which is printed on pp. 63 to 67 of the paper book and which was Suit No. 3 of 1919/1920 there was a case between the father of one of the plaintiff's and some others and the defendants Din Dayal and some others for recovery of profits. In this suit there was no direct issue as to the rate at which profits were to be assessed on the excess cultivation by defendants. There was an issue, issue 2:
Whether the entries in the patwari papers are incorrect in respect of the tenure, etc.
and an issue, issue 3:
Whether the plaintiffs are entitled to the relief sought and if so to what extent.
3. No doubt the question did arise as to the calculation of the amount of profits on excess cultivation, but it did not arise until the patwari had given evidence and the defendants then made objections to that evidence as shown on p. 65 under issue 3. We do not consider that a question which is decided in this manner can be stated to have been definitely in issue in this Suit No. 3 of 1919/1920, and accordingly, as there was no clear issue framed on the point between the parties, we do not consider that the finding can be held to be res judicata. Accordingly we think that we should decide the matter on the evidence in the present record.
4. Now the principle on which excess khudkasht is assessed is that a fair rate of rent should be placed on the excess cultivation and that defendants who have cultivated more than their share entitles them to cultivate are liable for the amount of excess cultivation at the fair rate of rent. Usually such a rate of rent is calculated on the rent of non-occupancy tenants of similar land. In the present case there is no difficulty whatever in ascertaining what should be the fair rate of rent in view of the admitted fact stated by the patwari that the rate of the great majority of tenants in this village is a grain rental equivalent to one-quarter of the gross produce.
5. We consider therefore that this rate should be applied to the excess cultivation of the defendants as sir or khudkahst. We do not see any reason why the usual principle should be departed from in an attempt to assess the value of the excess [cultivation of the defendants. For one thing, such calculations are extremely difficult and the patwari has given no details of the items which he has taken into his cost of production. Ho has stated on p. 7:
In the present statement, I have fixed the rate of expenses at 3 maunds per bigha, but on previous occasions I had fixed this at 2 maunds per bigha. I have excluded the price of bhusa, etc., from the profits. This 3 maunds per bigha includes all expenses up to even watching of crops and grass'
6. But when we turn to the statement of the patwari on pp. 88 and 89, Col. 7, which gives the deductions per bigha on account of other expenses, it shows that the 3 maunds deduction only applies to aghan paddy crop. Other crops are taken to have much lower rates for costs of production coming down to 10 seers per bigha. if the patwari was working out these rates from a cash equivalent, he ought to have said so clearly and, there is nothing in his evidence to indicate exactly on what principle he made his calculations, But apart from the difficulty of making any such calculations we consider that the principle is wrong. The results to which it would lead are peculiar. For one thing, in the case of Aghan paddy crop the patwari calculates the total produce at 7 maunds and the expenses at 3 maunds, leaving 4 maunds per bigha for which he would hold the defendants liable to the plaintiffs. But if this land had been let to tenants the tenants would only have paid the zamindars one-quarter of the gross produce, that is, one-quarter of 7 maunds per bigha which amounts; to If maunds per bigha, whereas a, zamindar should have to pay at the rate of maunds per bigha, that is, more than double the rent that a tenant would have to pay. We do not consider that a zamindar should be penalized because he has taken excess land into his cultivation.
7. The next point which remains is whether the defendants should be held to be tenants in the land for which they are recorded as tenants or whether they should be held to be in possession as khudkasht. We consider that the criterion is whether, the defendants acquired any particular holding before they became cosharers or after. In the case of those holdings which the defendants acquired before they became cosharers we consider that the defendants are tenants. In the case of those holdings which the defendants acquired after they became cosharers we consider that the defendants are holding as owners in possession of khudkasht. This was the principle on which this. Court decided in the appeal in the former suit.
8. One further question has arisen and that is the amount expended by the plaintiffs-respondents in printing which is about Rs. 900. The paper book has pp. 21 to 162 taken up entirely with statements printed at the instance of the respondents out of a total of 165 pages. We consider that there has been excess expenditure incurred as learned Counsel for the respondents did not allude to more than a few pages of this printed matter. We consider that it will be fair to tax only Rs. 250 of this expenditure for the purpose of costs
9. We allow this appeal and we set aside the decree of the Court of first instance and we remand this case to the Court of first instance for disposal in the light of the observations which we have made. That is, the Assistant Collector will-calculate the amount of excess profits for which all the defendants are liable at the-rate which we have laid down, that is one-quarter of the gross produce. The decree in favour of the plaintiffs will be based on excess calculation at that rate. Costs here and hitherto will abide the result.