Richard Garth, C.J.
1. We think that the District Judge has taken an erroneous view of the rights of the parties. The amount in question is inconsiderable; but the principle upon which the case depends is an important one; and as we had some doubt whether the view which we were at first disposed to take was correct, we have had the case argued a second time.
2. Under the Land Acquisition Act of 1870, the Government took a small piece of land, containing rather more than four bighas, in the district of Dinagepore, for the purposes of the northern Bengal State Railway. The agreed amount of compensation in respect of the whole of this land was Rs. 104-4-2; and three claimants only appeared-the Raja, who was the zamindar, the patnidar, and the darpatnidar. The District Judge held, that so long as the zamindar continued to receive from the patnidar his entire rent under the patta, without any abatement in respect of the land in question, his interests would not be affected; and as at the hearing of the case; in the Court below the patnidar undertook, through his pleader, to pay the whole rent to the zamindar, without diminution, the District Judge held, that the zamindar was entitled to no part of the compensation. Then, as regards the darpatnidar, the District Judge held, that, under a particular clause in the darpatni patta, he was disentitled to any compensation. That clause ran as follows:
If any land belonging to the estate is taken up for roads, or at the necessity of Government, and in case of your having an abatement in the rent of the said land in the patni dowl jama from the zamindar, you shall have to allow me too a reduction accordingly. I have no concern with the price.
3. The only question which appears to have been raised in the Court below with reference to this clause, was as to the meaning of the word ' price.' The patnidar contended that it meant the compensation paid by the Government for the land taken; whilst the darpatnidar contended, that it meant the price or premium paid by him to the patnidar for his darpatni. Upon this point the Judge decided, very justly in our opinion, that the patnidar was right; and that the word ' price' meant clearly the compensation payable by the Government; and as he considered that this was the only question between the parties, he held that, by this clause, the darpatnidar had relinquished his right to any compensation; and he, consequently, awarded the whole sum to the patnidar.
4. We think that he was wrong in two respects. In the first place, he should have awarded some portion at least of the compensation to the zamindar; and in the next, we think that, in the construction which he put upon the clause in the darpatnidar's patta, one' very material point was overlooked.
5. As regards the zamindar it is a mistake to suppose, that his interest in the land is confined entirely to the rent which he receives from the patnidar. He is the owner of it under the Government; and in the event of the patni coming to an end by sale, forfeiture, or otherwise, the property would revert to the zamindar, who might deal with it as he pleased in its improved state; and although in some cases, and possibly in his, the chances of the patni coming to an end may be more or less remote, there is no doubt that, in all cases, the zamindar is entitled to some compensation (small though it be) for the loss of his rights. At any rate, he would generally be entitled to receive at least as much as the patnidar, to whom in this instance the whole compensation has been awarded. If the latter continues to pay and receive the same rent which he did before, or if, on the other hand, he both makes an abatement to the darpatnidar, and obtains an abatement from the zamindar, as a rule he is no sufferer; because, generally speaking, the difference between the amount of rent which he pays and the rent which he receives, represents the improved value of the land which he gets from the darpatnidar. It may be of course, that his patni interest would sell in the market for a price larger than the capitalized value of the rent which he receives from the darpatnidar; and if so, she would be entitled to be compensated for the loss of the difference out of the sum payable by the Government. But as a rule, the capitalized value of the darpatni, over and above the value of his own outgoings, would represent the market value of his patni interest.
6. The parties who usually suffer most from lands being taken for Government purposes are either the ryots with right of occupancy, or the holders, whoever they may be, of the first permanent interest above the occupying ryots. The actual occupier is of course turned out by the Government, and if he is a ryot with a right of occupancy, he loses the benefit of that right, besides being driven possibly to find a holding and a home elsewhere; and the holder of the tenure immediately superior, to the occupying ryots, whatever the nature of his holding may be, loses the rent of the land taken during the period of his holding. These two classes, therefore, would, generally speaking, be entitled to the larger portion of the compensation, and if the darpatnidar in this instance belongs to the latter class, the larger portion of the compensation ought, presumably, to have gone to him.
7. But the Judge thought him disentitled by the clause in his darpatni; and certainly his case does not appear to have been argued very clearly in the Court below. The whole compensation was given to the patnidar, who, as far as we can see, has neither lost nor gained anything at present by the taking of the land. He pays the same rent to the zamindar, and he has hitherto received the same rent as before from the darpatnidar. It may be, that the darpatnidar has a claim against him for abatement of rent; and if this claim is enforced, the patnidar may be a loser to the extent of 'the capitalized value of the abatement. But at present there seems to. be no evidence that he has lost, or is likely to lose, anything.
8. But then is the darpatnidar disentitled to receive compensation by the clause in his patta? We think not; because in this instance the condition has not happened which would disentitle him. As we read the clause, it only provides that, in the event of the Government taking land. &c;, and also in the event of an abatement of rent being made by the zamindar to the patnidar, then the patnidar agrees to be content with a corresponding abatement from the rent which he pays to the patnidar, and in that case he relinquishes his claim to the Government compensation. But this relinquishment is to depend upon the two events, the taking of the land by Government, and the abatement being made in the patnidar's rent. No abatement has been made in this instance in the patnidar's rent; and consequently the condition upon which alone the clause was to take effect has not happened.
9. The case must, therefore, go back to the Court below to have the compensation divided in accordance with the principles which we have laid down. The zamindar has not thought fit to appeal, probably because the smallness of the amount did not make it worth his while to do so; and he, therefore, must be excluded. There are only the two claimants therefore; the District Judge will endeavour to make a fair division of the sum between them; and before doing so, he will do wisely to make the parties come to some arrangement as to the abatement or otherwise of the darpatnidar's rent,
10. The appellant having substantially succeeded, will be entitled to the costs of this appeal; and the costs in the Court below will abide the result.