Arnold White, C.J.
1. These are two appeals from awards made by the Acting District Judge of Kistna in proceedings under the Land Acquisition Act. They are both appeals by the Zamindar. The awards give the ryots the whole value of the trees that stood upon the land which was compulsorily acquired and apportion the total compensation awarded in respect of the land compulsorily acquired in the ratio of three-fifths to the ryots and two-fifths to the Zamindar.
2. I will deal first with that part of Appeal No. 38 which has reference to the value of the trees. With regard to this the District Judge says ' I uphold the Collector's award.' Then he points out that the dispute centres round the value of the trees and he says and that the Zamindar has no evidence to adduce in this case.' That is practically the whole of his award with reference to this question as to whether the whole value of the trees should go to the Zamindar as the Zamindar claimed or the whole value should go to the ryots as the ryots claimed. Now the award which the District judge says he upholds so far as we can follow the course of th6 proceedings and it has been by no means easy and as so seems to be the revised award which is printed on page 9 of the pleadings paper in A. 38. It is not clear under what provision of law the Deputy Collector was called upon by the District Judge to make a revised award after the reference to the judge under Section 30 had been made. However a revised award was made. Mr. Prakasam has contended that inasmuch as no evidence has been adduced before the District Court by the party on whose behalf the order of reference was made the District Court had no alternative but to decline to interfere with the award made by the Deputy Collector. No doubt proceedings under Part III of the Act are not by way of appeal and what is contemplated is a new inquiry by the District Judge. But I am not prepared to go so far as to say that because a party on whose behalf the order of reference is made adduces no evidence before the Court, he is precluded from asking the Court for a modification of the award as made by the Collector, although of course the fact that he is not in a position to adduce evidence before the judge is a matter to be taken into consideration in determining whether the award of the Collector should be disturbed.
3. In the award of the Collector with reference to the question of trees the Collector refers to a provision in the Muchilika that as the ' cist on palmyras and other trees is not included in this cist I (meaning the ryot) shall not object to any arrangement you (meaning the Zamindar) may make regarding them.' The Deputy Collector points out that this is capable of being interpreted to mean either that the ryot could take the trees paying a separate cist therefor or that the Zamindar is the sole master. Apparently it means that if the Zamindar insists upon a separate cist for the trees the ryot will not object to paying it. There is no evidence that the Zamindar ever did insist upon cist for the trees and the evidence called on behalf of the ryots shews that they had the use and enjoyment of the trees. I do not think it necessary for us to consider the questions of law raised in the cases of Narayana Ayyangar. v. Orr I.L.R. (1902) M. 252 and Bodda Godappa v. The Maharaja of Vizianagnram I.L.R. (1906) M. 155. No doubt there are cases in which damages have been awarded to Zamindars in respect of trees cut by the ryots specially possibly in the case of fruit trees, and the trees in question in this case are fruit trees. Cases which turn upon special agreements as between the Zamindar and the ryot do not afford us very much assistance in this case. We have to deal with it with reference to the special condition to which I have referred and in the light of the evidence with regard to user and in view of the fact that the Zamindar did not think it necessary or was not able to adduce any evidence before the District Court. I am not prepared to say that the learned Judge was wrong in upholding the Collector's award with regard to the question of trees.
4. I now turn to the other question and that is was the learned judge right in upholding the award of the Deputy Collector with reference to the question of apportionment? The learned judge says:--' I uphold the Collector's award'. The Collector's award is to be found on page 3 of the papers in A. No. 38. In that award with reference to this question the Deputy Collector states the contentions on both sides. He states that the contention of the Zamindar was that the compensation should be divided between the Zamindar and the ryots in the proportion of three-fifths to two fifths and that the contention of the ryot was that they were entitled to the whole of the compensation with the exception of one ryot who is content with three-fourths to the Zamindar and one fourth to himself. His finding is in paragraph--' The rates of apportionment between the tenants and the Zamindar will be 3/5ths and 2/5ths.' I think I am right in saying that in his award he gives no reasoning for apportioning compensation in these ratios. But in the reference to the District Court (which is to be found printed on page 9 of the pleadings papers in A. No. 39), which is stated to be under Section 18 of the Act though really it is one under Sections 18 and 30, he does give reasons why the award is apportioned in these ratios. They are to be found in paragraph 8. He cites the principle laid down in certain Calcutta cases and with reference to that he says--' If the principle contained in the above rulings were adopted the Zamindar would get much less than what has been awarded, that is much less than two fifths out of five fifths. Now in the award by the District Judge with reference to this part of the case, all that the Judge says is, ' The claimant is not ready with his evidence. With regard to that the same observations that I have made with reference to the other appeal seem to applicable.' Then he says-' Two judgments the Zamindar relies on, but neither of these relate to the village in which the lands in controversy were acquired. I uphold the Collector's award'. That really is the whole of the District judge's award with reference to this question of apportionment. On behalf of the Zamindar Mr. Nagabhushanam has contended that on the strength of the judgments to which the District Judge refers the award ought to be varied by giving the Zamindar three fifths out of the total amount leaving two fifths to the ryots.
5. Before I refer to the two Judgments upon which Mr. Naga-bhushanam relies I would like to refer to a decision which is cited at any rate in one of the judgments viz., Appasami Mudali v. Rangappa Nattan I.L.R. (1880) M. 367. That was a case in which the question arose as to the apportionment of compensation as between the mirasidar and the party holding under an IJlkudi tenure. The Court found that as between the mirasidar and the party holding under Ulkudi tenure in the division of the produce 5 kalams and 2 marakals went to the Zamindar 8 marakals to the Mirasidar and 4 kalams and 2 marakals to the Ulkudi. We are told that 12 marakals make one kalam. My learned brother has referred to the definition of marakal in Wilson's Glossary and it appears there that it is 12th of a kalam and his appears to be correct. So the ratio will be 62 marakals to the Zamindar, 8 marakals to the Mirasidar and 50 marakals to the Ulkudi out of 120 marakals. That seems to be the first fact considered by the Court in apportioning the compensation. Then the Court refers to another matter which should be taken into consideration, viz., the expenses of cultivation and the fact that the cultivator has a home and a sphere for labor for himself and his family. Taking all the factors into consideration the Court comes to the conclusion that the interests should be appraised by awarding three fifths to the Mirasidar and two fifths to the cultivator. The exact nature of the tenure of the cultivator in this case is not clear (see p. 3 to 97 of the judgment). It would seem however that he had not the same unqualified right of permanent occupancy such as is admitted to be the right of the ryots in the case now before us.
6. Now one of the judgments on which Mr. Nagabushanam relies is an unreported decision of this Court in A. No. 119 of 1893. The question arises with reference to the same Zamindari as that in which the land in the present case is situate. That is a decision by Mr. Justice Shephard and Mr. Justice Boddam on appeal from the District Judge who gave an award under the Act. The District Judge purported to apply the principle of the decision in Appasami Mudali v. Rungappn Nattan I.L.R. (1880) M. 367 and applying the principle he worked out the ratios as one fifth to the Zemindar and four fifths to the ryots. This Court in dealing with his judgment observes ' The District Judge appears to have been guided by figures as to which there is no evidence whatever. No evidence having been adduced we think he ought to have followed the rule laid down in Appasami Mudali v. Rangappa Nattan I.L.R. (1880) M. 367 and apportioned 3/5ths to the Zemindar and 2/5ths to the ryots'. I do not think the judges intended in Appasami Mudali v. Rangappa Nattan I.L.R. (1880) M. 367 to lay down a general rule. I do not think they intended to lay down that in all cases where compensation has to be apportioned between a Zamindar and ryots with a permanent right of occupancy and there is no evidence before the District Judge the compensation should be apportioned in the ratio of three fifths to two-fifths. If they did so intend with all respect I must say that I am not prepared to follow them.
7. The other case which was cited before the District Judge and on which Mr. Nagabhushanam relies is A. No. 118 of 1898. There the Zamindari is not the same but the land was situated in the same District as the Zamindari with which we are now concerned is situated. That is a judgment of Mr. Justice Subramania Aiyar and Mr. Justice Moore and this question of ratios was only raised in the Memorandum of objections which was put in by the ryots on the appeal by the Zamindar with reference to the award of the District Court as regards the question of occupancy rights. It would appear that the Memorandum of objections put in by the ryots was that the apportionment of three fifths to the Zamindar and two fifths to the ryots was wrong. That memorandum of objections was dismissed. But there is nothing to show that this question was argued or even stated to the Court. There is nothing to suggest that the learned judges had before them the decision in A. No. 119 of 1893 or that this question was in any way considered. I do not think we ought to regard the decision in A. 118 of 1898 as accepting or affirming the decision of Mr. Justice Shephard and Mr. Justice Boddam to which I have referred. It seems to me the real principle is that laid down in Appasami Mudali v. Rangappa Nattan I.L.R. (1880) M. 367. That is certain factors should be taken into consideration and apportionment made after a consideration of the various factors. If there is no evidence before the District Judge he was of course entitled to take this fact into consideration in delivering whether he should disturb the award of the Collector.
8. Mr. Prakasam has called our attention to several Calcutta cases viz., Shama Prosunno Bose Mozamdar v. Brakoda Sundari Dasi I.L.R. (1900) C. 146. Dinendra Narain Roy v. Tituram Mukerjhee I.L.R. (1903) C. 801. Bhupati Roy Chowdhury v. The Secretary of State (1907) 5 C. L. J. 662. and Satish Chunder Chatopadhya v. Kaigaturi Nath Chowdhery (1902) 7 C.L.J. 284. The principle of apportionment there is not altogether the same as the principle laid down in Appasami Mudali v. Rangappa NattanI.L.R. (1880) M. 367. I do not know whether we need compare these two principles because so far as the Calcutta cases are concerned the tenure owned by the cultivator is not the same as the tenure by right of permanent occupancy which is enjoyed by the ryots in this case, and it is not quite clear what was the precise nature of the tenure in some at any rate of the Calcutta cases. So I do not propose to discuss it. All I propose to say with reference to the award in this appeal is that applying what seems to me to be the principle we ought to apply namely that laid down in Appasami Mudali v. Rangappa Nattan I.L.R. (1880) M. 367. so far as we can apply it in the absence of evidence before the District Judge it cannot be said that an apportionment of three-fifths to the ryots is excessive. It seems to me that the appellant in this case has failed to show that the District Judge was wrong in upholding the two awards made by the Deputy Collector. Appeal No. 38 will be dismissed with costs.
9. As regards appeal No. 39 the Collector was made a party to the appeal and so far as the Collector has any interest in the appeal. The award of the District Judge states that the zamindar's vakil gave up his contention as regards the amount of compensation payable. That was the only question which arose as between the Zamindar and the Collector. In these circumstances I think A. No. 39 must be dismissed with costs of the ryots' and also with the costs of the Collector.
10. I concur.