1. It is a little difficult to see what the precise point which is sought to be argued before us in this second appeal is. The findings of both Courts are perfectly clear that the putni kabuliat passed the chaukidari chakran lands to the plaintiffs as putnidars without any reservation. There was a clause in the contract that after resumption, the putnidar should be bound to pay separately at the rate of resumption the amount that may be demanded after resumption by Government of the chakran lands from the Collectorate of the District, that is, that the duty of paying assessment levied by the Collector under Section 49 of the Chaukidari Act falls upon the putnidar; and the putnidar will pay this or omit to pay at his own risk. If he do not do so and the zemindar thereby incur any loss, the remedies of the zemindar are well known and he can have no difficulty in enforcing the duty upon the putnidar, or in the last resort have the putni sold up. There does not seem to us, therefore, to be any scope for anything in the nature of specific performance of a contract. The contract, as far as the putnidar is concerned, is already complete, and if the putnidar in future neglects what he has undertaken by it, viz, to pay the Government assessment, that would be a matter for future consideration. It seems to us that the zemindar had no right whatever to call upon the putnidar to take settlement or to refuse settlement, and that in the absence of any settlement, the zemindar had no right to settle the land with tenants. That being so, the tenant appellant is a trespasser and he cannot retain khas possession in the face of the putnidar's title.
2. The doctrine of specific performance, which was raised in the case of Ranjit Singh v. Radha Charan Chandra 34 C. 564 was raised in a different form is the case of Gopendra Chandra Mitter v. Taraprasanna Mukerjee 14 C.W.N. 1019; 37 C. 5 98; 7 Ind. Cas. 790 and it is in this form that the learned Vakils for the appellant desires us to give effect to it. But the facts of that case were different. It was not found that there had been a demise without reservation of the chaukidari chakran lands to the putnidar, and the question whether there is any contract remaining to be performed between the parties is a question of fact. We think that the rule laid down by the late Chief Justice in the case of Banwari Mukunda Deb v. Bidhu Sundar Thakur 35 C. 348; 7 C.L.J.439; 12 C.W.N. 459 must govern this case whatever exception there may be thought to be in the other case. That general rule is that action for possession of chakran land included in the putni cannot be an action for specific performance of contract, and if there was no scape for an action for specific performance, there was no possible ground for the zemindar to keep the putnidars out of possession or to ask them to do anything except to pay the Collectorate assessment.
3. We, therefore, think that so far as the defendant No. 3 is concerned, who is the only appellant before us, the appeal must be dismissed with costs.