Mitter and Norris, JJ.
1. This appeal has been preferred by the zamindars of Bagi Shibpore, against a decree of apportionment of the compensation granted in respect of two bighas fifteen cottahs of. newly-formed land which accreted to a mourasi and muhurari tenure within the zamindari by the recession of the river Hooghly, of which tenure the respondents before us are the proprietors.
3. The appellants contended that, as the land in question was, under the 1st Clause of Section 4, Reg. XI of 1825, added as an increment to the mourasi tenure of the respondents, they under that clause were bound to pay rent at the full letting value minus a deduction of twenty per cent, as their profits; and that the land having been taken under the Land Acquisition Act, the compensation awarded in respect thereof should be divided in the proportions of 80 per cent, to the appellants and 20 per cent, to the respondents.
4. The respondents admitted that they were liable to an increased rent, but contended that such an increased rent should bear the same proportion to the rent of the original tenure as the quantity of land accreted bears to the area of the original tenure, and that the compensation awarded should be divided by giving the appellants the value of rent of the accreted portion taken upon the above basis, plus 15 per cent, for compulsory sale, and the balance to them.
5. The lower Court has accepted the contention of the respondents as correct.
6. In Golam Ali v. Kali Krishna Thakur I.L.R. 7 Cal. 479 it was held that accreted lands should be governed by the terms and conditions applicable to the parent tenure, and that the same rent was payable for it as for the land included within the kabuliat. Reading the judgment of Mr. Justice Pontifex, I do not think that any inflexible rule was intended to be laid down as applicable to all cases; but that, having regard to the particular circumstance of that case, it was thought that the accreted land should bear the same rent as was payable in respect of the land included in the original tenure. If I have rightly apprehended the purport of this decision, I feel no hesitation in following it. The words ' increase of rent to which he may be justly liable,' contained in Clause 1, Section 4 of Regulation XI of 1825, indicate to my mind that it was not intended to lay down any inflexible rule applicable, to all oases. For example, where a mukurari was granted at the full letting value of the land comprised in it, it would be unjust to the tenant to assess the newly added land at the rate of the original mukurari, if the accreted lands be of inferior quality. On the other hand, if the accreted lands be of superior quality, or if in fixing the muherari rent a lower standard than the full letting value was adopted in consideration of any bonus paid, it would be unjust to the landlord to fix the rent of the accretion at the rate of rent fixed in respect of the original tenure. But in the absence of any special circumstance the rate of rent to be assessed upon the accretion in my opinion should be in proportion to that paid for the parent tenure. In this case no special circumstance is shown to exist. The decision of the lower Court upon this point is therefore correct.
(The Court then proceeded to deal with the other questions raised in the appeal, and concluded by varying the decree of the lower Court in certain particulars immaterial for the purpose of the report.)