B.B. Ghose, J.
1. These two appeals arise out of two suits brought by the plaintiffs as patnidars to set aside the sales of two patnis under Regulation 8 of 1819. The Subordinate Judge set aside the sales of both the patnis and the zamindar defendant has preferred these appeals. Both these suits were governed by the same judgment and the facts, with regard to both were the same. The arguments addressed with regard to both these appeals before us are the same and one judgment will govern both these appeals.
2. The plea of the plaintiffs was principally that the tenures were not patnis so as to invoke the provisions of Regulation 8 of 1819 for holding a sale under that regulation; secondly, that the requisite notices were not served as provided in Section 8, Regulation 8 of 1819. The sales in these cases were mid-year sales for the dues on account of the patnis for the first half year. The Subordinate Judge held that both the tenures were really patnis and the sale under Regulation 8 is, therefore, not incompetent. He also held that there was publication of the usual notices in the zamindar's kacheri and on the defaulters' land before 15th Kartik prior to the sale. There was another objection that the publication in the Collector's kacheri was after 15th Kartik, therefore, the sale was invalid on that ground. This argument the Subordinate Judge rejected on the authority of the case of Niamat Ullah v. Forbes  2 C.W.N. 459. The Subordinate Judge, however, held that the sale was bad because there was no publication of the petition of the zamindar in the Collector's kacheri and, secondly, that the notice which was stuck up in the Collector's kacheri did not specify the informations required under Section 8, as the only information that was conveyed by the notice was the date of the sale. Ground 3 on which the Subordinate Judge held that the sale was bad was that the notice stuck up in the Collector's kacheri was not kept there up to the date of the sale as required by Sections 8 and 10, Regulation 8 of 1819. He held that the notices published on 12th November1 1920 were returned to the office on 'the following day, that is about three days before the date of sale He held that apart from Ex. B, that is the return of the peon, who stuck up the notices in the Collector's kacheri, there was no other evidence to show how long the notice was kept stuck upon the Collector's notice board. On these grounds the Subordinate Judge set aside the patni sales and decreed the suits.
3. On behalf of the zemindar defendant, it has been argued before us that the Subordinate Judge is in error on all the three points on which he held that the notice published in the kacheri of the Collector was bad. On behalf of the plaintiffs-respondents, it was argued that the Subordinate Judge was right on all these points, but he was wrong in holding that the tenures in the case were patni tenures and he ought to have held that Regulation 8 of 1819 did not apply to these tenures and, therefore, the sales tire bad. On this ground the judgment and decree of the Subordinate Judge wore sought to be supported by the plaintiffs-respondents in addition to the grounds which had been found in their favour by the Subordinate Judge.
4. I shall take up, first, the point which the respondents urge was erroneously decided by the Subordinate Judge, as it is a pure question of law based on the construction of the kabuliyats. The Subordinate Judge decided this question in issue 7 in his judgment. He held that there was no doubt that the properties in question were patnis and he referred to the dowl kabuliyats. One argument was addressed before him which was also addressed before us and that refers to only one of the tenures which was the subject matter of suit No. 1333, that the original rent had been increased to some extent and, therefore, the tenure was not saleable for the excess rent under Regulation 8 of 1819. The contention which was very elaborately argued before us on behalf of the patnidars, shortly stated, comes to this, that in the dowl kabuliyats it is stated that a certain area of land was included in the patni. It was, however, stipulated that if, on measurement, it was found that the area of the patnis exceeded the area mentioned in the kabuliyats, for that excess area the patnidars would be bound to pay rent at the rate payable by khodkast raiyats for lands throughout the pargana. It is contended that this provision shows that the rent of the land was not fixed in perpetuity and, therefore, although the tenures are described as patnis in the dowl kabuliyats executed by the original lessees, the tenures are not really patnis as described in Regulation 8 of 1819; and although there are provisions in both the kabuliyats that the landlord would be entitled to realize arrears of rent by having recourse to Regulation 8 of 1819 amongst other reliefs under different regulations, as a matter of fact the zemindar would not be entitled to sell the tenures under the provisions if Regulation 8 of 1819. It is necessary here to state that in the dowl kabuliyat dated 17th Falgun, 1263 corresponding to 27th February 1857 (Ex. A-1) the provisions entitling the landlord to have recourse to Regulation 8 of 1819 for recovery of arrears appearing in the original document has by mistake been omitted from the translation of the document. The first question, therefore, for consideration is whether, notwithstanding the provision referred to, the agreement that, if upon fresh measurement the quantity of land is found to be in excess, separate rent should be paid, renders the tenures anything other than patnis. It is true that a grant of a patni connotes the idea that the rent is fixed in perpetuity, but I do not see why a tenure should cease to be anything but a patni if there is a provision that the rent should be increased in a certain manner if the area of the mouza demised is found to be in excess of what was granted. That provision does not make the rent reserved variable. The result of that provision simply is that if there is a measurement, rent should be increased at a certain rate, and if that is done the same rate will continue in perpetuity. The increase of rent for increase of area does not mean variation of the rent. Besides, the enumeration of the elements of a patni in the preamble of Regulation 8 of 1819 does not exclude the idea of the rent being altered either for increase of area or for diminution of area.
5. It is settled law that if the area is diminished of a patni mahal by reason of acquisition of land for public purposes, the patnidar would be entitled to diminution of the rent. Similarly, it is notorious that additional rent has been imposed upon patnidars where chaukidari chakran lands have been resumed within the patni and there has been fresh assessment of the land to which the patnidars were entitled under the patni grant, but for which they have been held liable to pay excess rent for being put into possession of the resumed chaukidari chakran lands. In such cases it has never been suggested that the patni ceases to be a patni taluk within the meaning of Regulation 8 of 1819. As to the liability of the patnidar to pay additional rent for chaukidari chakran lands see the case of Bhupendra Narain Singh v. Narapat Singh . It is hardly necessary to repeat, as the Subordinate Judge has pointed out, that the kabuliyats described both the tenures as patnis. It was stated in the case of Brindabun Chunder v. Brindabun Chunder  13 B.L.R. 408:
In the preamble of that Regulation (8 of 1819) which, as contended for by the learned Counsel, it must be admitted, is not an enactment but merely a recital, it is said, 'By the terms of the engagements interchanged it is, amongst other stipulations, provided that, in case of an arrear occurring, the tenure may be brought to sale by the zamindar, and if the sale do not yield a sufficient amount to make good the balance of rent at the time due, the remaining property of the defaulter shall be answerable for the demand. These tenures have usually been denominated patni taluks. Their Lordships are of opinion that under the -description 'patni taluk' and 'darpatni taluk' it must be prima facie intended that the tenure called a patni tenure was a tenure transferable by sale, and upon the creation of which it was stipulated by the terms of the engagements interchanged that, in case of an arrear occurring, the estate might be brought to sale. If so, according to the terms of Regulation 8 of 1819, the tenure might not only be brought 'to sale, but it might be sold free from incumbrances.'
6. In that case no kabuliyat or patta was produced and there was no reference to Regulation 8 in the contract of lease. In this case in both the kabuliyats it is clearly stated that the landlord may have recourse to the provisions of Regulation 8 of 1819. The argument, therefore, that these tenures are not patnis so as to come within the operation of Regulation 8 of 1819 must fail, and, as held by the Subordinate Judge, the additional rent assessed can also be recovered under the provisions of that regulation. It is next contended that in the kabuliyats there is a provision that, in case of any arrears, the zemindar would be entitled to take possession of the taluk and realize the arrears by appointing a Krok Tehsildar. That is a condition precedent to a sale under Regulation 8 of 1819. I do not think there is any substance in that argument. All the steps which the landlord might take for realising his dues are stated in the kabuliyat. He is not bound to take one and not the other. He might proceed under one or the other of the many ways stated in the kabuliyat for the recovery of his arrears. In my opinion, the Subordinate Judge was right in holding that the zemindar was competent to have the tenure sold under Regulation 8 of 1819.
7. I shall next proceed to discuss the questions found in favour of the plaintiffs by the Subordinate Judge. At the outset it should be stated that it does not appear that there is any evidence in support of the Subordinate Judge's finding that the notice was not kept stuck up in. the Collectorate up to the date of the sale as required by Sections 8 and 10 of the Regulation. The defendant has given evidence that the notice was there up to the 1st Agrahayan, that is the date of the sale. That evidence has been given amongst others by defendant 2 and there is no cross-examination on that point. The Subordinate Judge has held that the notice was returned to the office on the following day after its publication on 12th November, that is, about three days before the date of sale. This finding is not supported by any evidence whatsoever. The third objection stated by the Subordinate Judge as to the sufficiency of the publication of the notice at the Collectorate is, therefore, of no substance.
8. Then about the second objection, and it was that the notice did not specify any information other than the date of the sale. This also is erroneous on the face of it, because the notice (Ex. E) which according to the evidence is a copy of what was published in the Collectorate, distinctly says:
if the defaulters fail to pay the arrears given in the schedule or the 12 annas demand up to Kartik, etc., the mahala in arrears will be sold at auction at the Noakhali Collectorate on the date fixed;
and in the schedule, the name of the mahal and the arrears are mentioned. The second objection, therefore, is without any substance.
9. There remains the question with reference to the first objection. It was contended on behalf of the plaintiffs-respondents that the Subordinate Judge held that the original petition and notice were not stuck up but some copies of them. That is not the meaning of what I understand the Subordinate Judge to have said. This contention was sought to be supported by the translation of Ex. B, which is the return of the peon for service of notice. There the words are 'by affixing seven copies of the notice.' The Bengali expression may be translated into 'seven sets of notice.' It seems to me that the idea of copies being published arises from the fact that the Subordinate Judge has cited the case of Bejoy Chand v. Atulya Charan  32 Cal. 953, in support of his finding. But I think the Subordinate Judge really cited that case in support of his view that the petition of the zemindar was not published and that vitiated the sale. He states that:
Ex. B, the return, does not disclose the publication of the petition in question; nor is there other evidence of that publication if any. The sale, therefore, cannot stand on this ground.
10. It is contended by the appellant that the Subordinate Judge is not right in saying that the petition was not stuck up at the Collector's kacheri. He refers to Ex. J, the notice signed by the Collector. It is stated there that an application having been filed by the zemindar under Regulation 8 of 1819, owing to the rents of the patni taluk mentioned in the petition herein given and comprised within the zemindari, and so forth. From that it is argued that the petition was really stuck up in the Collectorate. This statement in the notice, with the signature of the Collector, no doubt raises a presumption, in favour of the petition having been stuck up with the notice. But it is contended on the authority of the case of Ahsanulla Khan v. Hurri Churn  17 Cal. 474 that it is not essential that the petition should be published. The learned Judges made this observation at p. 480:
It was further urged by Mr. Woodroffe that non-compliance with the provisions of the Regulation which require that the petition shall be stuck up in some conspicuous part of the kacheri was fatal to those proceedings. We think, to us the words of the Privy Council in the case of Maharani of Burdwan v. Kishna Kamini Dasi  14 Cal. 365, that this publication of the petition is not a substantial portion of the process to be observed by the zamindar. No injury could result to the patnidar or any one holding under him by the non-publication of this petition, which, as I have already pointed out, is only the method prescribed by the Regulation for putting the executive machinery in force.
11. This decision was affirmed by Privy Council in the case of Ahsanulla Khan v. Hari Charan  20 Cal. 86, and no observation was made by the Privy Council dissenting, from the view expressed above. It seems to me, therefore, that the appellant is right in his contention that the non-publication of the petition is not fatal-It is no doubt true that the burden of proving that all the requisites of the regulation have been complied with in-order to sustain the sale is upon the zamindar. In this case, the zamindar has given evidence that all the requisite notices were served. His witness 7 proved that the notices as well as the Lata istahar, which means the list of the patni mahals in serial numbers, was published along with the notice, and it was Abdul Khaleq who did it. The flaw in the evidence on behalf of the appellant is that Abdul Khaleq has not been examined and no explanation is given why he was not examined. Probably he was not available at the time. But the Subordinate Judge has allowed evidence to go in for the purpose of proving his signature on Ex. B. There is no counter evidence on behalf of the plaintiffs to disprove the evidence given on behalf of the zamindar. Under such circumstance, it is difficult to hold that, the evidence that is given on behalf of the defendant should not be accepted.
12. On these grounds, in my opinion, the judgment and decree of the Subordinate Judge in both the cases are set aside and the suits dismissed with costs in both Courts, to be payable by the plaintiffs to defendant 1, zamindar. Defendant 2, the auction-purchaser in each case, will bear his own costs in both Courts.
13. The auction-purchaser, who is a respondent in appeal No. 224, preferred a cross-objection, because the Subordinate' Judge, while indemnifying him in every manner, did not allow him any costs. But as, according to our view, the sales, stand, the auction purchaser is not entitled to anything by way of indemnity. The cross-objection is dismissed without costs.
14. We assess the hearing fee in appeal No. 185 at three gold mohurs.
15. I agree.