1. In this case the defendant No. 1 is the Zemindar and the defendants Nos. 2 to 4 are the tenants in occupation of the lands in suit. These defendants were originally holding the lands as chakran lands under the zemindar. In 1901, the zemindar resumed these lands and settled them with these defendants at a money rent. The plaintiff who is the durputnidar brought this suit to recover khas possession of these lands and also prayed, in the alternative, that fair and equitable rents might be fixed for them.
2. The first Court granted a decree holding that the zemindar was liable to pay rent to the plaintiff. On appeal to the District Judge, the plaintiff has been granted a decree against the defendants Nos. 2 to 4 and has had his title declared to realise from them fair and equitable rents for the lands, the amount of which will be settled in a rent suit.
3. As the appeal has been argued, the only question we have to decide is whether the plaintiff is entitled to khas possession or not. This point turns on the question whether these lands were really chakran lands or not.
4. It has been found by the lower Court that the zemindar, under the terms of the putni and durputni leases, had no right to resettle the lands in suit. The plaintiff who is the appellant contends that on that finding, he is entitled to a decree for khas possession. For the respondent, it is contended that the tenancy of the defendants Nos. 2 to 4 in these lands is not a purely chakran tenancy. It was a condition of the durputni settlement that the tenants who held chakran lands for services should pay to the durputnidar what is called khut rent, and this khut rent was assessed on the proportion of land revenue that would be payable to Government on this portion of the estate. The condition, therefore, was that the chakran tenants did not get the land rent-free, but instead of paying rack rent, they had to pay only the share of the revenue on the land 'they held. It was contended on behalf of the respondent that this payment of khut rent to the durputnidar was sufficient to create the relationship of landlord and tenant between them and that consequently the durputnidar has now no right to khas possession.
5. It is to be observed that in their written statement, these defendants denied ever having paid this khut rent to the plaintiff, but now on their behalf, reliance is placed on the statement in the plaint that the defendants Nos. 2, 3 and 4 have stopped paying khut rent to the plaintiff, which clearly implies that before the settlement made by the zemindar, these defendants had been paying this rent to the plaintiff. It is clear that under the terms of the durputni lease, these defendants were liable to pay khut rent to the plaintiff and it is immaterial whether it was actually paid or not. This khut rent was not really rent but a proportion of the revenue payable to Government which, under the terms of the durputni lease, was payable to the plaintiff in respect of those lands of which he got no benefit under his lease. Such a payment could not create the relationship of landlord and tenant between the plaintiff and these defendants. The plaintiff never recognised these defendants as his tenants. So long as the chakran tenancy continued, the zemindar, and not the plaintiff, had the right to settle tenants on the land. On the termination of the chakran tenancy, the zemindar, although he had no right to do so, settled these tenants on the land. This settlement would not give these defendants the right to remain on the land against the wish of the plaintiff.
6. As was held in the case of Upendra Narain Bhattacharjee v. Pratap Chunder Pardhan 8 C.W.N. 320 : 31 C. 703, it is clear that the proper remedy in this case is a decree for khas possession and this has not been seriously contested on behalf of the respondent, who bases his objection to a decree for khas possession on the contention that the tenancy was not a purely chakran tenancy.
7. We accordingly decree this appeal with costs and modify the decree of the lower Court by declaring that the plaintiff is entitled to khas posession of the lands in suit. He will be entitled to recover mesne profits for three years before the institution of the suit and also for a period from the date of the institution of the suit until recovery of possession. An inquiry will be made by the lower Court to ascertain the amount of mesne profits payable to the plaintiff.