1. These appeals arise from two suits brought by the patnidar tenure holders in respect of lands held by them under the zamindars from a date previous to the permanent settlement. The original patni tenure included two rivers which in the course of time either silted up or changed their courses so that culturable lands were formed in what had been the river beds at the time when the original patni lease was granted. Resumption proceedings took place with regard to the lands thus formed with the result that two diara mahals, Bachra 2391 and Tarabaria Enayatpur 2354, were created and assessed to revenue by Government. Bachra was assessed at Rs. 1791-15-0 and as the maliks refused settlement this amount is being paid to Government direct by the patnidars. Tarabaria was assessed at Rs. 131-11-0 and Enayatpur at Rs. 194-8-0. The zamindars took settlement of both these mahals. It may be noted that the entire patni rent at the time of these new settlements was Rs. 1955 odd. The patnidars then brought two suit? one being No. 219 in respect of Bachra and he other being No. 250 in respect of Tarabaria. They challenged the right of Government to resume and assess the lands and fairness of the rents fixed. They claimed suspension of the rent payable for the patni tenure, or in the alternative proportionate abatement of that rent, which was payable to the zamindars under the original grant. Their case against Government failed and has been finally decided against them.
2. With regard to the case against the zamindars, there was a remand order by this Court with a direction to come to a decision as to the right of the patnidars to claim abatement of rent from the zamindar defendants. On remand, the Court of first instance decided that in the case of Bachra, where the patnidars now hold directly under Government, there should be an abatement of the rent of the tenure to the extent of Rs. 115, a decision which was upheld in the Court of appeal below. In the case of Tarabaria Enayatpur, of which the zamindars have taken settlement from Government after the resumption proceedings in which the rents were fixed at Rs. 131-11-0 and Rs. 194-8-0 respectively, and the revenue payable by the proprietors at Rs. 163, the first Court decided that the rents assessed should be treated as samil jamas with the tenure rent so long as the zamindars defendants hold the diara mahal in respect of these lands. This decision however was set aside in appeal, the appellate Court taking the view that the jamas could not be treated as samil jamas but that the correct order to make was to reduce the patni rent by Rs. 163 being the revenue payable by the zamindar in respect thereof.
3. The zamindars have appealed against the decision in so far as it grants abatement in respect of the Bachra lands, on the ground that there should be no abatement of the tenure rent in respect of them. This forms the subject-matter of appeal No. 1164. Both parties have assailed the decision of he appellate Court with respect to the Trabaria lands, the appeal of the zamindar being No. 1165 and that of the tenure-holders being No. 1181. The zamindar defendants in the original suits contend that there should be no alteration in the patni rent at all. The patnidar plaintiffs contend that the decision of the subordinate Judge was right. Hence the present appeals. It has been found by the Courts below that the lands in suit were at the time when the original patni was created, actually the beds of two rivers, Hura Sagar and Korotya, and that those rivers were within the ambit of the tenure which is known as Taraf Chapri. These lands were not in existence when the original grant was made, and the original patni lease is not in existence. The position then is that at the inception of the mokarrari tenure, and for a considerable time afterwards, these lands did not exist, though the tenure itself was in existence before the decennial settlement. The resumption proceedings, consequent on the formation of the lands in suit, are of a comparatively recent date.
4. The question then is whether and to what extent, the patnidars are entitled to abatement of rent for lands, which came into existence within the ambit of the original patni after its creation, in view of the position that these lands were, by virtue of their origin, liable to assessment by Government to rent and revenue. In this connexion, it must be remembered that in the case of one of the resumed diara mahals No. 2391, Bachra, the zamindars refused settlement, so that the patnidars are now paying rent direct to Government, and there is no relationship of landlord and tenant between them and the zamindars in respect of these lands. In the case of the Tarabaria mahal No. 2354, the zamindars took settlement from Government, and are still landlords of the patnidars with respect to those lands which have formed within the area of the original patni Taraf Chapri.
5. On this state of facts, we are of opinion that the case must be decided in accordance with two broad principles of law. The first is that in so far as the relationship of landlord and tenant still exists between the parties their mutual rights and liabilities must depend on the original contract made by their respective predecessors-in-interest irrespective of any subsequent resettlement by Government. The second is that the tenant cannot be called on to pay twice over for the same land.
6. There is specific authority for the first proposition in the Privy Council case in Pria Nath Das v. Ram Taran Chatterjee ('03) 30 Cal 811, where it was held that resumption by Government did not disturb possession of the heirs either of the landlords or the tenants, and that a subsequent settlement did not abrogate the rights of the tenant so long as the heirs of the landlord were in a position to let him have the land. The liability of the tenant remained what it was under the original settlement, in this case the patni grant. This case was followed in ILR Srish Chandra Nandi v. Midnapore Zamindari Co : AIR1938Cal853 and the principle underlies Section 191, Ben. Ten. Act, which however makes special provision for the case of leases or contracts entered into after the passing of the Bengal Tenancy Act, 1885. Applying it to the present case we think that the rents settled for the diara mahal Tarabaria in the resumption proceedings cannot add to the liabilities of the patnidars, who are entitled to hold in accordance with the original patni lease, while the representatives of the original zamindars continue to own the lands. It follows that the patnidars are entitled to a declaration that these two jamas should be treated as samil jamas as long as the representatives of the original lessors retain the superior interest.
7. With regard to the Bachra mahal, the position is quite different. Here the relationship contemplated by the original patni lease no longer exists. The zamindars have lost possession, and the rents 'assessed in the resumption proceedings are paid to Government. The tenants can therefore claim abatement to the extent to which it can be shown that they are paying twice over for the same land. On that point however the findings of fact are that none of the lands included in the resumed diara mahal Bachra were in existence when the original patni lease was granted, and in the absence of any evidence as to the terms of the grant, or that the rate of rent was in any way affected by the consideration that there might be re-formation in the beds of existing rivers, it cannot be held that the patnidars are, at the present time, paying rent twice over for any part of the lands held by them. On this aspect of the case, we have been referred to the case in Jitendra Nath Roy v. Ashutosh Goswami ('23) 10 AIR 1923 Cal 429 as authority for the proposition that the patnidars are entitled to abatement to the extent of the rent assessed on mahal Bachra by Government. Apart from the consideration that the practical result would be that the patnidars would in that case pay no rent at all, we think the ruling has no application. It was there found, first that the resumption proceedings were wrong, and secondly, that the plaintiffs had acquiesced in a dispossession by Government.
8. In the present case, the right of Government to resume has been established and there can be no question of ouster or acquiescence. The result then is shortly that the patnidars cannot be made to pay additional rent for the diara mahals settled with the zamindars while that settlement remains in force, while at the same time they have made out no case for abatement of the patni rent in respect of the diara mahal which they themselves hold under Government. In the result, Appeal No. 1164 must be allowed, the decision of the Courts below must be set aside and the plaintiff's suit dismissed. Appeal No. 1165 by the zamindars must be dismissed. Appeal No, 1131 must be allowed, the decree of the Court of appeal below set aside, and that of the Court of first instance, declaring the jamas to be samil jamas and directing correction of the Record. of Rights restored. Parties will bear their own costs throughout in all the appeals.