1. We cannot go behind the order of remand made by this Court on the 15th January 1874. The case was then sent back to the Assistant Commissioner 'to have it distinctly tried what is the nature of the defendant's tenure. On the finding on that issue will depend whether or not the plaintiff is entitled to recover in this suit on the notice which he has already served.'
2. Both the lower Courts have now found that the defendant's tenure is a 'tullubi bromottur one,' held as such from the time of the perpetual settlement, and, therefore, such an intermediate tenure as entitles the holder to a notice under Section 51, Regulation VIII of 1793.
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3. There is, undoubtedly, evidence on the record showing that, at the time of the decennial settlement, the defendant's holding was entered in the records as a tullubi bromuttur one paying a quit-rent of sicca Rs. 182-9, and that the Judicial Commissioner has found that this was the nature of the holding.
4. In Rajah Nilmoney Singh v. Chunderkant Banerjee 14 W.R. 251 a case almost precisely similar to this and between the same parties, it was held that a tullubi bromuttur tenure was one that entitled the owner to notice under Regulation VIII of 1793. And in Rajah Nilmoney Singh v. Ram Chuckerbutty 21 W.R. 439 the result was much the same. It was held in that case that the defendant's tenure, being found to represent a permanent transferable interest in the land intermediate between the proprietor of the estate and the ryots, came under the provision of the Regulation, and gave its owner the right to notice under the law of 1793. In that case also the plaintiff was the same person as the plaintiff in this case, and the defendants set up the same defence as that made in the present suit. This suit Was, moreover, been twice remanded, so that it is hardly possible to conceive a case in which the plaintiff had a better opportunity to ascertain what his rights were and to bring them forward in a proper and legal manner.
5. It is argued that the evidence on which the Judicial Commissioner has relied does not prove that the defendant is an intermediate holder. This was a question of fact with which the Court below had exclusive power to deal, and it has not been in any way shown us that the finding was come to upon no evidence. It cannot indeed be said so in the face of the entry of this holding as a tullubi bromuttur one in the settlement papers of 1790.
6. It may be that the defendant has cultivated, or does cultivate some part of the holding himself, but this would not deprive him of his position as the holder of an intermediate tenure.
7. We think that the Judicial Commissioner has found upon sufficient legal evidence that the defendant holds an intermediate tenure, and upon this finding, as laid down in the remand order of 1874, depended the question whether the plaintiff was entitled to sue for enhanced rent under the notices he had already served.