1. This is an appeal by the defendants in a suit for recovery of possession of land with mesne profits. On the 27th July 1866, the plaintiffs obtained a putni of two villages from the zemindar defendants. A bonus of Rs. 1,000 was paid for this lease and the annual rent was fixed in perpetuity at Rs. 501. Within the ambit of the lands comprised in the putni lease, there were chowkidari chakran lands, at that time in the occupation of chowkidars These lands were subsequently resumed by the Government and transferred to the zemindars, in conformity with the provisions of the Village Chowkidars Act, 1870. The zemindar took possession of the lands and settled them with tenants. The plaintiffs, who were putnidars, thereupon instituted this suit on the 11th June 1910 for declaration of their title and for recovery of possession with mesne profits. The Courts below have concurrently made a decree in their favour; but the two Courts have disagreed as to the terms under which the plaintiffs are entitled to hold this land as part and parcel of their putni under the zemindars. The Court of first instance held that the plaintiffs were under an obligation to pay to the zemindars, not only the sum assessed under the Village Chowkidars Act, 1870, at the time of resumption, but also a share of the profits of the lands they claim to recover. On appeal, the Subordinate Judge has held that the plaintiffs are liable to pay to the zemindar nothing beyond the sum assessed at the time of resumption as payable into the chowkidari fund. Upon the question of mesne profits also, the two Courts have disagreed. The Trial Court held that the rent payable by the tenants settled on the lands by the zemindars was the measure of damages recoverable by the plaintiffs. The Subordinate Judge, on the other hand, has held that the plaintiffs are entitled to the value of the actual produce of the lands in suit. The zemindars have appealed to this Court and have raised only those two questions whereon the Courts below have disagreed: they have not disputed the right of the plaintiffs to recover possession of the lands, and it may be added that in view of the decision of the Judicial Committee in the case of Ranjit Singh v. Kali Dasi Debi (1) the decree for possession cannot possibly be successfully challenged.
2. As regards the first question, namely, the terms under which the plaintiffs are entitled to recover possession of these lands from the zemindars and the tenants inducted by them into the land, we are of opinion that the view taken by the Subordinate Judge is erroneous. It was pointed out by this Court in the case of Kazi Newaz Khoda v. Ram Jadu Dey 34 C. 109 : 11 C. W. N. 201 : 5 C. L. J. 33. that if in assessing the putni rent, the profits of all the lands including the chakran lands were fully taken into account, the putnidar would not be liable to pay additional rent for the chakran lands when they came into his possession: but otherwise the putnidar is bound to pay to the zemindar, in addition to the fresh amount assessed on resumption, a fair share of the profits derivable from ,the land. This view has been subsequently approved in the cases of Rajendra Nath Mukerjee v. Hira Lal Mukerjee 7 Ind. Cas. 554 : 14 C. W. N. 995; Gopendra Chandra Mitter v. Taraprasanna Mukerjee 7 Ind. Cas. 790 : 14 C. W. N. 1049 : 37 C. 598. and Harak Chand v. Charu Chandra Singh 8 Ind. Cas. 766 : 13 C. L. J. 102 15 C. W. N. 5. In the first of these oases, Brett, J., pointed out that it was not correct to hold as a general principle of law that the putnidar is not bound to pay to the zemindar more than the assessment made by the Collector: the zemindar would be equitably entitled, not only to payment of the assessment made by the Collector, but also a proportionate share in the profits such as the zemindar would, in the circumstances, be entitled to impose on the putnidar. We are of opinion that this view is unquestionably sound on principle. In the ease before us, there is no indication in the contract between the parties that, at the time of inception of the grant, the putni rent was assessed on the basis of the assets of all the lands situated within the ambit of the putni inclusive of the chowkidari chakran lands, It is, on the other hand, plain that the rent hitherto paid by the plaintiffs to the defendants has not represented the profits derivable from the chowkidari chakran lands. Consequently, the terms of the contract between the parties do not entitle the plaintiffs to claim possession of the lands in suit from the zemindars, merely on payment of the sum now assessed by the Revenue Authorities under the Village Chowkidars Act, 1870.
3. Reliance has been placed by the plaintiffs-respondents upon the provisions of Section 51 of the Village Chowkidars Act, which however do not really advance their contention. Section 51 provides that the land resumed by the Collector is transferred to the zemindar, subject to the prior contracts made by him. The effect of the application of that principle to the case before us is that the plaintiffs can, under the terms of the putni lease, recover possession of the lands in suit. But the contract does not show that the plaintiffs are entitled to such possession without payment of any rent to the zemindar or without payment of any sum beyond what represents the new assessment. Consequently, on equitable grounds, the putnidar and the zemindar must be placed in the position they would have occupied, if the chowkidari chakran lands had been resumed before the putni was created: the assets of those lands would then have been taken into account in settling the amount of putni rent, which would have represented the assessment due to the State as also a fair share of the profits, In these circumstances, we are of opinion that the order of the Court of first instance was just and proper and should not have been varied by the Subordinate* Judge.
4. As regards the second question, namely, the basis of calculation of mesne profits, it cannot be disputed that the plaintiff as putnidars would have been entitled to possession of the lands through tenants: the measure of damages payable to them is Consequently represented by the rent payable by the actual cultivators to the plaintiffs as putnidar This was the view taken by the Court of first instance, and should not have been rejected by the lower Appellate Court.
5. The result is that this appeal if allowed, the decree of the Subordinate Judge set aside and that of the Court of first instance restored. The appellants are entitled to their costs in this Court, but there will be no order for costs before the Subordinate Judge.
6. This judgment will govern the other two cases, viz., Second Appeals Nos. 2501 and 2502 of 1912, in each of which a similar order will be drawn up.