1. This appeal arises out of a suit brought for arrears of rent payable in part in cash and in part in produce. We are now only concerned with so much of the rent as is payable in the form of paddy, and the objection taken on the part of the appellants before us is that they are entitled to have it determined in this suit whether this paddy rent is to be taken by appraisement or division and that whichever it be, it should he determined in this suit what their rights are in respect of that rent.
2. By way of answer to the appellants contention it is urged that the matter is concluded by the proceedings before the Sub-Divisional Officer of Nowada, dated the 18th of April 1905 to the 17th of May in the same year. These proceedings, it is contended, Bring the matter within Sections 69 and 70 of the Bengal Tenancy Act. But to make good that contention it must be shown that as required by Section 70 Sub-section (5), the Collector passed an order entitled to finality and enforceable as a decree. It is conceded before us that there is no order which in the proceedings before the Sub-Divisional Officer can be treated as enforceable as a decree. The result is that, apart from the decree that was passed by Mr. Justice Brett, the landlord were left without any adjudication either (sic) the Court or of the Sub-Divisional Officer entitled them to any part of the rent. Mr. Justice Brett has passed a decree in their favour, but with that the appellants before us are dissatisfied and it is not seriously contended before us that it is a decree which can be supported, unless the plaintiffs are prepared to accept it as sufficient. This they are not disposed to do, and we, therefore, hold that this appeal must be allowed.
3. The decree that we pass is that we set aside the decree of the lower appellate Court and remand the case in order that it may be determined whether the rent, so far as the paddy is concerned, is to be taken by appraisement or division of the produce, and it must further be determined, what remedy the plaintiffs are entitled to in. respect of their rent. That part of Mr. Justice Brett's decree which relates to the Bhadui and Rabi crops will stand.
4. The plaintiffs will get their casts of the appeal to this Division Bench.