1. The suit out of which this appeal arises was brought to recover malikana for the years 1320 to 1331 in respect of the resumed estate No. 4798 of the Bakarganj Collectorate. There were 29 persons interested as co-sharers in the mahal. By certain proceedings, shown by Ex. 7, gross assets of the estate were fixed at Rs. 5,214 odd out of which deduction on account of collection and malikana charges was made to the extent of Rs. 2,003 odd, the net revenue payable to the Government being Rs. 3,200. This mahal, it appears, has been let out from time to time on temporary leases by the Collector, the last of them being from 1st April 1910 to 31st March 1925. The plaintiff claims a 3 annas 11 gandas odd share in the mahal up till 1325 and thereafter another share of 2 annas. It has been found by the lower appellate Court and that finding cannot be challenged here that notice was served upon all the proprietors under Section 10 (4), Regn. 7 of 1822 that on the date fixed none of the proprietors appeared except Barahanuddin the predecessor of defendants 1 and 2 and Ibrahim Chaudhuri the predecessor of defendants 3 to 12 and that they took settlement of the resumed estate for the period mentioned above. They continued to be in possession on payment of Government revenue until they made default some time in the beginning of 1923. The mahal was consequently sold for arrears of revenue under Act 11 of 1859 on 26th June 1923, the sale relating back to 28th March 1923, and was purchased by defendants 13 to 14. The plaintiff's case is that as one of the proprietors ho is entitled to the malikana from the predecessors of defendants 1 to 12 up to the date of the sale and thereafter from the purchasers. He claims malikana from 1320 to 1331 B.S. The sale having taken place some time in the middle of Chaitra 1329 his claim against defendants 1 to 12 is up to that period and his claim against the auction purchasers is from the middle of Chaitra 1329 to the end of Chaitra 1331, the last date of the settlement taken by Barahanuddin and Ibrahim.
2. The sole question which has been canvassed in this case is whether the plaintiff is entitled to claim malikana from the auction-purchasers or whether by the revenue sale his right to receive malikana has been extinguished. The two Courts below have differed on this question; the trial Court found for the plaintiff and the learned Subordinate Judge in the appellate Court was of opinion that by the revenue sale the plaintiff lost his right to receive malikana from the purchasers. The point has been argued at great length and it is strange to say that though the decision of this question rests upon an enactment more than a century old there is no decided case exactly in point presumably for the reason that the question admits of no doubt.
3. Before proceeding further it may be useful to see what this right of malikana is. It has been defined in numerous cases of which it is enough for our present purpose to refer to the view expressed by the Judicial Committee in Deokur v. Man Kuar  17 All. 1 (at p. 161 of 21 I.A.) where it has been defined as 'a grant of a portion! of the revenue in lieu of pre-existing proprietary rights,' It is necessary to bear this definition in mind in considering the question at issue. In Section 44, Regn. 8 of 1793, it was defined as 'an allowance in consideration of proprietary rights.' Origin of this system may be traced to the Moghul period, but it has been recognized by the British Government in the regulations relating to resumed estates not permanently settled under the permanent settlement. Almost the first indication of this right of malikana reserved to the proprietors is to be found in Regn. 8 of 1793 as it originally stood. By that regulation the decennial settlement was proposed and it was enacted that an offer shall first be made to the proprietor or proprietors for the settlement. Section 43 provided that in the event of any proprietor declining to engage for the settlement of his lands at the jama proposed to him the Board of Revenue should fix the jama (by which Government revenue is meant) and the proprietor was to be required to engage for such assessment and in the event of his refusal his lands were to be let in farm or held khas as the Board of Revenue might in each instance think most expedient.
4. Section 44 said that proprietors who might finally decline engaging for the jama proposed to them and whose lands might consequently be let in farm or held khas were to receive malikana or allowance in consideration of their proprietary rights at the rate of 10 par cant on the sudder jama of their lands. Section 45 enacted that when lands were let in farm, the farmer was to engage to pay the 10 per cent malikana to the proprietor of the lands farmed by him in addition to the jama payable by him to Government. By Section 46 (she Collectors were empowered to enforce payment of the malikana from the farmers by the same process as was prescribed for enforcing payment of arrears of public revenue. Section 47 provided that in the event of the lands being held khas on the refusal of the proprietor to engage for the settlement of them, the malikana was to be paid monthly from the treasuries of the Collectors.
5. Sections 44 to 47, Regn. 8 of 1793, were repealed by Regn, 7 of 1822; but they are useful in order to show the nature of the interest called 'malikana' with reference to what is called 'jama' which is Government revenue. Malikana is thus compensation paid to the proprietor of resumed lands for the loss of his proprietary and possessory right in them when they are let in farm or held in khas by Government.
6. We now come to the consideration of the provisions of Regn. 7 of 1822 on which the decision of this case rests. This regulation was at first enacted for a portion of this Province, but it was subsequently extended by Regn. 9 of 1825 to other parts of the Province. Section 2, Regn. 7 of 1822, empowers the revenue authorities to allow the proprietors who may be under engagement for the payment of revenue to continue to hold for a further period of five years after the expiration of such engagement. Under Section 3, in future settlements preference shall be given to the zaimindars or other persons possessing a permanent property in mehals, if willing to engage for the payment of the public revenue on reasonable terms. If the zamindars and other proprietors refuse to continue their existing engagements or to enter into now engagements on equitable terms it shall be competent to the revenue authorities to let the lands in farm, for a period, not exceeding 12 years or to assume its direct or khas management. Section 5 apparently lays down the rights of the proprietors if the revenue authorities let the lands in farm or assume direct management of the mehal. It says that the proprietors of the estate 1st in farm or held khas shall be entitled to receive the allowance of malikana at such rate as the Board may determine and it shall not be in any case less than 5 per cent or more than 1.0 per cent on the net amount realized by Government from the lands.
7. There are several provisos to the section one of which says that the proprietors will be asked to state the highest amount of jama for the payment of which they may be willing to engage and the malikana will be fixed on the amount so stated and not on the jama ultimately realized by Government. I refer to these provisions in detail in order to show that malikana is quite distinct from the revenue payable to the Government and the right to receive malikana stands on a quite different consideration. Section 8 may also be referred to in this connexion as it provides for letting out waste land. It says that where the waste land adjoining any mehal is very extensive it shall be competent to the Revenue Officer' to grant leases for the same to any persons who may be willing to under like its cultivation and to assign to the zamindar an allowance equivalent to 10 per cant on the amount payable to Government by the lessees, in lieu and bar of all claims to or in the waste lands. The allowance thus payabla to the zamindars is the malikana receivable by them in their capacity of being' the proprietors of the land as distinct from the amount payable to Government by the lessees of waste lands; and it is to be calculated at 10 per cant on the' amount payable to Government.
8. We now come to S.10, Regn. 7 of 1822, upon the interpretation of some of the clauses of which the decision of the point before us depends. The previous provisions of the Regulation give directions that in settling resumed mehals the first offer of settlement shall be made to the proprietor and on his refusal the Collector may farm it out or hold it in khas. Under Clause 3, Section 10, if there are a number of persons possessing a joint property in any village or mehal, it shall be competent to the Collector to make a joint settlement with the parties collectively or with a majority of them or to select one or more of them to undertake the management of the mehal as sudder malguzars by which is meant persons engaging to pay the Government revenue assessed. If the Collector decides to make, or invites the proprietors to accept, joint settlement he shall have to give notice of his intention by a written proclamation under Clause 4 requiring all persons having proprietary right to attend either in person or by representative within a reasonable period, at a stated place and time, and to declare their agreement or non-agreement to the jama proposed to be assessed on the village or land. It is to be noted that the proclamation to be issued by the Collector requires the proprietors to attend in order to express their assent or dissent to the jama or revenue which is proposed by the Government as leviable upon the mehal. Clause 5, which is the most important for our present purpose, says that
if any person or persons 20 summoned as above shall refuse, neglect, or omit to attend either in person or by representative such person or persons shall be held to be bound by the decision of the majority of those who may attend in agreeing or disagreeing to the jama, and his or their interests and estate shall, unless otherwise specially allowed, be hold responsible for the Government revenue and be liable to sale in the event of any arrears accruing on account of the settlement.
9. It is not difficult to understand the first portion of the clause which says that if any proprietor does not attend and the majority of those attending agree to the jama or revenue proposed by the Collector he will be bound in spite of his absence by the decision of the majority. The latter portion of the clause says that in such an event he shall be held responsible for the Government revenue and his interest will be liable to be sold in the event of any arrears accruing on account of the settlement. This clause evidently does not consider the case of !the Government letting out the mehal or holding it in khas. It invites the proprietors to take settlement of the mehal. If any of them does not attend and the revenue proposed is accepted by the majority of the persons attending he is bound to pay the revenue if there is a settlement by the Government with the proprietors. Apparently, if there is no settlement with the proprietors and the (Government farms out the mehal or holds it in khas the provisions of Section 5 will apply and the proprietors will be entitled to malikana at the rate fixed by that; section. This construction to Clause 5, Section 10, receives support from the following clause, Clause 6 says:
If any person or persons shall attend and shall object to the jama proposed to be assessed, then, should a settlement be made with the other parties present, the objecting parties shall be left in the enjoyment of the same rights and interests as they would enjoy, in the event of the mehal being farmed or held khas.
10. It is quite plain that if a person attends and objects to the jama and the settlement is made with the other parties present the proprietor or proprietors objecting will be entitled to the rights which they would enjoy in the event of the mehal being farmed or held khas, namely, the right of receiving malikana under Section 5. It is clear that in such a case the right of the objecting proprietor to receive malikana is not subject to his being responsible for the Government revenue and is not liable to be extinguished if the mehal is sold for arrears of revenue. Thus distinction is made between a proprietor not attending and a proprietor attending but objecting to the jama. A proprietor not attending after notice may be taken to have no objection to the assessment which he is willing to pay if settlement is made with the proprietors. No question of malikana then arises. In the latter case, the proprietor attends and objects to enter into an engagement on the proposed jama; he will receive malikana only and will have no further concern with the mehal. Clause 5 contemplates the case of the proprietors taking settlement.
11. In the case before us on the date fixed by the Collector two out of 29 proprietors appeared and took settlement of the mehal from the Collector as sudder malguzars undertaking to pay the Government revenue, and I take it also, to pay the malikana, as it is not denied that since the engagement the predecessors of defendants 1 to 12 had been paying the malikana to the plaintiff. This settlement was effected by the Collector not under Clause 5, Section 10, but under Clause 3 of that section which empowers him to select one or more of the proprietors to undertake management of the mehal as sudder malguzars. In the learned Subordinate Judge's opinion notice under Section 10 (4) having been served, the plaintiff and other proprietors who did not appear to engage with the Government were liable for payment of revenue along with Brahanuddin and Ibrahim who actually took the settlement under Section 10 (5), Regn. 7 of 1822. I fail to understand how the plaintiff may be made liable for payment of Government revenue when by their engagement Brahanuddin and Ibrahim undertook to pay the revenue to the Government and the malikana to the proprietors.
12. Looking at the question from the common sense point of view it seems to me that the legislature intended to keep malikana and Government revenue as two distinct claims against the farmer of a resumed mehal. The result of giving effect to the view of the learned Subordinate Judge would be that the purchaser at the auction sale is to get the mehal free from the liability to pay malikana due to the other proprietors which to me seems to be in excess of the right which he has purchased at the sale. The engagement between the Government and Barahanuddin and another was to the effect that they would be liable for the Government revenue. The plaintiff had only the right to receive malikana from them for he had the right in case of nonpayment of the malikana to sue for it. He had no control over the collection of rents and presumably no liability for payment of revenue.
13. In the above view which I take of the matter it must be held that the plaintiff |has not lost his right to receive the malikana and that defendants 13 and 14 are liable to pay the malikana to the plaintiff and are also liable to pay Government [revenue in respect of the mehal. Malikana is not an encumbrance on the estate under Section 37, Act 11 of 1859. It is a part of the revenue and assessed upon it.
14. The learned Subordinate Judge has decided the amount which the plaintiff is entitled to receive from defendants 1 to 12 up to the end of 1328 and this is not disputed before us. As to the malikana for 1329 up to the middle of Chaitra of that year, when the mehal was sold, he has dismissed the plaintiffs' suit on the ground that the malikana wag payable at the end of each year and since the year had not come to a close before the property was sold the plaintiff was not entitled to recover it from defendants 1 to 12. As regards the purchasers he has held that they are not liable to pay the malikana as the plaintiff's right to receive malikana was extinguished by the revenue sale. According to the view which I have taken the amount claimed by the plaintiff in respect of the year 1329 is to be apportioned between defendants 1 to 12 and the purchasers, defendants 13 and 14. There is no reason why defendants 1 to 12 should not be liable for the malikana In proportion to the period they were in occupation of the mehal and collecting rent from the tenant3. Defendants 1 to 12 are therefore liable for the amount of malikana from the beginning of the year 1329 till the 15th Chaitra of that year less any amount that might have been paid and thereafter defendants 13 and 14 are liable for the malikana for the 15 days of Chaitra 1329 and for the years 1330 and 1331. The decree has to be prepared according to the above directions. The result is that this appeal is allowed and the decree of the lower appellate Court is set aside to the extent indicated above. The appellant is entitled to proportionate costs in all the Courts.
15. I agree.