1. This is an appeal brought by certain persons who claim a permanent interest under the name of jagirdars under the respondent Raja Jyoti Prosad Singh Deo--the zamindar in respect of certain land which has been compulsorily acquired under the Land Acquisition Act. The purpose of the acquisition was for providing land for the offices of the Engineering and Telephone Staff of the East India Railway at Asansol and the date of the declaration is 4th August, 1925. The amount of land that has been acquired appears to be 1.861 acres. The land under acquisition has been divided into some eleven plots and in addition to the zamindar there are a number of persons claiming to be intermediate tenure-holders of jagirdars as well as a number of persons who are tenants in occupation of the land. The present appeal is brought by some of these intermediate tenure-holders. They originally asked for a reference both against the amount of the Collector's valuation of the land as well as against the principle adopted by the Collector in the apportionment of the compensation money as between the intermediate tenure-holders and the zamindar. It appears that the Collector by his award so far as regards the amount awarded as compensation for the land divided that half and half between the proprietor and the intermediate tenants and this is the portion of the Collector's award which in the end was attacked.
2. The reference to the District Court was brought in 1924 and the case was not heard until January, 1929. When it was heard, the only evidence adduced on behalf of the present appellants was, first of all, the evidence of one witness a man whose name is Atal Roy. This witness says, 'I am one of the mokarari mourashi jagirdars under the Raja'. He says that the whole of the mouza is included in the jagir, that the rent of the entire jagir is Rs. 376-4 0, that his tenants are all mokarari tenants and so forth Having said these various things upon what basis' and upon what knowledge it does not appear, he goes on to say that he has documents to prove all these facts but that he has left them at home he does not know whether there is any sanad of the jagir. He says that there are 100 or 150 jagirdars. It further appears that certain documents, although they were not put in at first were afterwards put in, in support of the appellants' case. There is a decree dated 1886 in a previous acquisition case a proceeding between the zamindar and some 51 persons all described as jagirdars of Mouza Asansol. That appears to have been in respect of the acquisition of 176 bighas under a notification of 1869 the fact being that the original reference had proceeded on appeal to the High Court and there had been a remand in 1883. The decision of the learned District Judge then was that, as between the Raja and those jagirdars, the Raja was only entitled to get compensation to the extent of the amount the Raja had agreed to grant abatement in the rent; and in that judgment it appears that there is included an account in which it is said that there are 5,841 bighas in the Mouza of Asansol and that the rent payable for the same is Rs. 406 at an average rate of such and such per bigha. In addition to that, there is a further proceeding of the which raises no question of apportionment and which does not appear to throw any light upon the present question. There is also a judgment of the District Judge delivered in 1909 gainst the zamindar and certain persons not fully get out, calling themselves jagirdars; and, in the course of that judgment, the learned District Judge said that in a previous case he had decided that the zamindar was entitled only to such compensation as had been awarded by the Deputy Collector and that only if he agreed to a corresponding abatement of the rent.
3. The learned District Judge who heard this reference was of opinion that before him there was no proof at all of the interest of the persons coming before him to object to the apportionment. The duty of the present appellants in the District Court was to adduce proper evidence before the learned Judge showing what their interest was on the date of the notification. Having seen what their interest was both vis-a-vis their landlord and vis-a-vis their tenants, the learned District Judge would be in a position to say whether the apportionment which had been made by the award was a proper apportionment or not. The first thing that happened was that the only person who gave evidence at all asserted by his evidence that his own tenants were tenants upon mokarari terms. He stated the terms from which it appears that, so far from his having any ground of complaint against the amount that had been awarded to him, he had on any view of the valuation of this land been very much overpaid. His case was that for his share he got Rs. 400 from his tenants but paid Rs. 10 to the zamindar and that the are in his share was 80 bighas. The learned District Judge points cut that if that is so then, so far as he is concerned, his interest would appear to be much overvalued. The only answer that could be made to that was 'if that be so, then my tenants have been compensated by much too small a sum and for that reason I will help mysel out of the landlord's share to a sum of money which does not belong to him but which should have gone to my mokarari tenants'. That was the first difficulty that the learned Judge was faced with and a very formidable difficulty it was. The question is not only as to this particular man but as to these appellants as a whole. The case with which the appellants came to court was that they undertook to show that the zamindar had lost all his interest in this land except his right to the rent pins certain conceivable contingencies such as that the permanent tenancy might come to an end or that the zamindar might get some casual or occasional profit hardly capable of being put at a money value. Consequently, they said all that the zamindar has lost is his right to a certain amount of rent and everything else belongs to the tenure-holders. Upon that, it is very necessary for the appellants to show what their interest was. The mere fact that they call themselves jargirdars so far from showing that they have a permanent interest tends the other way. They had to show that their interest was permanent. They had to show that the landlord had parted with his prima facie right to enhance the rent, a right which on the valuation arrived at in this case was a right which would be of a, substantial value. They had to show whether the rent was mokarari. The only proof, apart from the remarks of the gentleman who left his documents at home, comes to nothing. There are the two decrees of 1909 and 1886 which are put in evidence. It may be that the 1886 decree can be seen to proceed, on the assumption that the whole of the land of this mouza was covered by a single jagir and that was on mokarari terms. That was no proof whatever, in my judgment, of the title of the appellants before the District Judge but was evidence of transaction just as in the case of Gobinda Narain Singh v. Sham Lal Singh . the court regarded proceedings is a suit for partition as evidence of transaction. Just as in that case it was rejected as evidence to show that the estate was partible, so in the present case it appears to me that these decrees not being shown to be inter partes were not evidence save under Sections 13 and 43 of the Evidence Act. It does not follow that because in the case of certain land the landlord suffered a judgment to the effect that his interest in the mouza was very email, he has for ever and for all purposes and as against other people to put up with all consequences of that judgment. These decrees are not, in ray judgment, evidence that the jagirdars have permanent interest, still less that the rent is not enhancible; and, if they are evidence at all, they are not such evidence as the learned District Judge was obliged in the absence of other evidence to be satisfied with.
4. In that position, we have to consider the circumstance which Mr. Gaose has brought very fairly to our notice and which might have some effect in the present case. These lands have been valued at a fairly high figure as being eithar bastu lands or waits lands fit for bastu. There is nothing said is the Collector's award and there is nothing in the evidence whether or not there is any value in the underground rights. Never the less, it does seem to me on principle that the correct position in the case of tenure holders under the zaminiar is this: Prima facie the zamindar has the whole of the interest; it is for the tenure-holders to show what part of the interest the zamindar has diverted himself of in their favour. It does not seem to me that any of the appellants laid any proper evidence before the learned District Judge is support of his claim. In these circumstances, I am at a loss to know what the learned District Judge could have done save to dismiss the appeal.
5. I think that this appeal mast fail and be dismissed with costs: hearing fee, five gold mohurs.
6. I agree.