1. This appeal comes before us under Clause 15 of the Letters Patent, and it arises out of a suit brought for the recovery of rent and cesses. So far as a decree for the rent has been passed in favour of the plaintiff, no controversy arises, but the dispute is as to the decree in respect of (he cesses claimed. The plaint sets out in a schedule the arrears of cesses, and from that schedule it appears, as the fact is, that the claim is made in respect of four separate jamas. The decision in the Court of the Munsif, so far as it related to the cesses, was adverse to the plaintiff, inasmuch as it was not shown what was the annual value of each of these four jamas. The Subordinate Judge modified that decree, for it appeared to him that he was entitled to utilize the valuation-roll filed on behalf of the plaintiff, and marked Exhibit I which showed the annual value of the lands as Rs. 1,293 6 annas, and the total amount of rent payable by the defendant as Rs. 463-6. On that basis he passed a decree in the plaintiff's favour for the excess claimed by him over and above that which had been awarded by the Munsif. From that decree an appeal was preferred to this Court, which came before Mr. Justice D. Chatterjee. He set aside the decree of the lower Appellate Court and restored that of the Court of first instance on the ground that upon the plaintiff's own document it appeared that the defendants were treated by the plaintiff as raiyats of the land in respect of which the present suit was brought. This ground of decision does not appear to us to be sound for it proceeds upon the assumption that a raiyat cannot be a tenure-holder within the meaning of the Cess Act of 1880. This view overlooks the interpretation clause of the Act which speaks not of 'raiyat' but of cultivating raiyat, and provides that a 'cultivating raiyat' means a person cultivating land and paying rent therefor not exceeding one hundred rupees per annum: whereas a 'tenure' is defined as including 'every interest in land, whether rent paying or not, save and except an estate as above defined, and save and except the interest of a cultivating raiyat.' The reasoning which commended itself to the learned Judge does not seem to be sufficient for the purpose of the determination of this case, for, when we turn to Section 41, by reference to which this case was largely decided, we find the distinction is not between a holder of a tenureand raiyit, but between a holder of a tenure and a cultivating raiyat. At the same time, we think that the decree of the lower Appellate Court cannot stand except so far as it affirms the first Court's decree for rent. It appears to us that the proper issues in this case were not raised at the out-set and that by reason of this failure there has been a mishandling of the case from the very commencement. In our opinion, it was incumbent upon the plaintiff to establish and the Courts to find, what was the annual value of each of the four jaraos; and, also, whether in respect of those four jamas the defendants were tenure-holders or cultivating raiyats within the meaning of the Act; and, further, what was the profit, if any, in respect of each of the four jamas; for, it was only by determination of those several issues that the just solution of this case could be reached.
2. We must, therefore, set aside the decree of the lower Appellate Court, except so far as it deals with the rent awarded, and send back the case for re-trial on fresh materials--if the parties desire to bring forward fresh material, in the Court of the first instance; and whatever issues may be settled, those at any rate which we have indicated will be necessary for the proper determination of the case, whether there should be other issues it is not possible to say at this particular stage.
3. The costs of this litigation hitherto incurred have been more or less thrown away, and all we can say with reference to them is that those costs must follow the result of the further hearing.