Nasim Ali, J.
1. These six appeals arise out of three suits: Suits Nos. 66 and 67 of 1929 and Suit No. 7 of 1931 of the First Court of the Subordinate Judge of Midnapore. They were instituted for assessment of fair and equitable rent in respect of some lands which appertained to Touzi No. 1991 of the Midnapore Collectorate. Suits Nos. 66 and 67 were heard together. The trial Judge held that the plaintiff was entitled to fair and equitable rent for the lands in question and fixed as fair rent Rs. 69-4-3 pies for the lands of Suit No. 66 and Rs. 74-3-10 pies for those of Suit No. 67. The defendants appealed to the lower Appellate Court and the learned District Judge has reduced the rent to Rs. 39-14-2 pies in Suit No. 66 and Rs. 40-5-4 pies in Suit No. 67. In Suit No. 7 of 1931 the trial Judge held that the plaintiff was entitled to fair and equitable rent settled and fixed Re. 38-14-1 1/2 pies as fair rent. The plaintiff appealed to the lower Appellate Court. The defendants also filed cross-objections. The cross-objections were dismissed, but the appeal was allowed in part and the fair rent was assessed at Rs. 53-11-3 pies. Hence these second appeals. The plaintiff is the appellant in S.A. Nos. 1721 and 1722 of 1932 and 450 of 1933. The defendant has filed Second Appeals Nos. 1917 and 1918 of 1932 and 905 of 1933.
2. The point for determination in these appeals is whether the plaintiff is entitled to have fair and equitable rent assessed for the lands in suit and, if so, for what amount. The fads which are relevant for the purposes of the present appeals are these: the disputed lands are choukidari chakran lands. The plaintiff is the proprietor of estate to which the lands appertain. The defendant is a mokararidar in respect of these lands by virtue of some grants made by the predecessor-in-interest of the plaintiff in favour of his predecessor-in-interest. The lands were resumed and were settled by the Collector under the Choukidari Act (Act VI of 1870) with the plaintiff and his co-sharers whose share has ultimately vested in the plaintiff. The plaintiff after taking settlement from the Collector made new settlement of these lands with certain persons. That tenant, defendant's predecessor-in-interest instituted certain suits against the proprietor for recovery of khas possession of these lands on the ground that they were choukidari chokran lands. In those suits khas possession was disallowed but the mokararidar right to recover rent from the tenants settled by the proprietor was declared. The present suits were thereupon instituted by the proprietor for settlement of fair and equitable rent in respect of these lands.
3. Four points were raised in support of the appeals by the mokararidar: (1) that the disputed lands were in fact not choukidari chakran lands and were never resumed: (2) that even, if there was any resumption it was not done under the Choukidari Act (Act VI of 1870), (3) that the plaintiff acquired no title whatsoever on the basis of settlement from the Collector as the disputed lands were not included in the settlement, (4) that assuming that there had been resumption of the disputed land under the Choukidari Act and , plaintiff acquired valid title to these lands by settlement from the Collector, the terms of the mokarari grant precluded plaintiff from claiming any rent in addition to what was fixed by the terms of the grant. There is no substance in the first two points. These questions were not put into issue and discussed in the Courts below The learned Judge has rightly pointed out that the mokararidar's case throughout had been that the resumption of the suit lands by the Collector was under the Choukiclari Act and in the previous litigation the mokraraidar succeeded on that basis. As regards the third point, much reliance was placed by the learned Advocate upon certain judgments in the previous suits. It is true that in the previous litigation plaintiff failed to prove that the settlement from the Collector covered the disputed lands. But it appears that the decision of the' Court in the previous litigation was not based on this finding and the finding on this point was not necessary for the purposes of that litigation. The decision in the previous litigation on the question whether the settlement by the Collector included the disputed Lands or nit cannot, therefore, operate as res judicata in the present litigation. In this case, the trial Judge has come to the conclusion that the disputed lands were included in the settlement made by the Collector under the Choukidari Act. On appeal to the lower Appellate Court, this finding does not appear to have been challenged. Under these circumstances, I am unable to give effect to this contention. I now come to the fourth point. In Ranjit Singh v. Bahadur Singh 45 IA 162 : 48 Ind. Cas. 262 : AIR 1918 PC 85 : 46 C 173 : 16 ALJ 964 : 35 MLJ 728 : 23 CWN 193 : 25 MLT 8 : 29 CLJ 193 : 1 UPLR (PC) 23 : 21 Bom. LR 506 : 10 LW 83 (PC), Lord Buckmaster observed as follows:
It does not follow that because the rights originally arose by virtue of a grant declared to be a contract within the meaning of Section 51 (of the Choukidari Act VI of 1870) they are, therefore? rights, contractual, in the sense that the contract by its terms A creates and regulates the personal obligations and duties of the grantor in the circumstances that have arisen. At the time when the patni grants were made the resumption of the choukidari chakran lands was not even contemplated, and the grant necessarily contains no reference whatever to the circumstances that would arise and the relationships that would exist in the event of the Government resuming possession. Upon resumption of such possession the rights of the patnidar were those conferred on him by the estate and interest created by the patni leases, and it was these rights that were kept alive by Section 51 of Act VI of 1870 of the Bengal Council.
4. Again in Bhupendra Narayan Singh v. Narapat Singh , it was laid down that when choukidari chakran lands included in a putni settlement have been resumed and transferred to the zamindar under Bengal Act VI of 1870, he is entitled to the payment of a fair and equitable rent in respect thereof. It is contended on behalf of the tenant that in the mokarari grants in respect of the lands of Suit Nos. 66 and 67, the pesh khash of the choukidari chakran lands was taken into consideration in fixing the jama of the mokarari warns, and consequently the zamindar is not entitled to set any additional rent for the chakran lands. In these two cases the grants were made before the Choukidari Act. The parties to the contract could not possibly have contemplated the resumption of these lands under the Choukidari Act which was not then even passed. The mere fact that pesh khash which was being paid by the choukidars to the zamin-dars, was included in the jama and the mokararidar was given the right to realise it from the choukidars, would not go to indicate that the zamindar at the time of the grants gave up his right to get fair rent for these lands arising out of events which was not contemplated then. So far as the grant in Suit No. 7 of 1931 is concerned, pesh khash was admittedly not taken into consideration in setting the rent of the grant. The grants in all these cases, in my opinion, do not take away the right of the zamindar to get fair and equitable rent for the disputed lands after they have been resumed and the zamindar has been made liable to pay additional revenue for the same. I am, therefore, unable to accept this contention of the learned Advocate. As regards the an peals by the landlord plaintiff, the only point raised by the learned Advocate is that the learned Judge in setting fair and equitable rent has not correctly applied the principle applicable in such cases. It was contended that the learned Judge has wholly overlooked the principle that the assets of these lands should be fairly and equitably distributed between the landlord and the tenant. There may be some room for a criticism like this. But it appears to us that the landlord has got about 30 per cent, of the assets in Suit No. 66, about 40 per cent, in Suit No. 67 of 1929 and about 48 per cent, in Suit No. 7 of 1931. Under these circumstances, we are not prepared to interfere with the amount of rent settled by the learned Judge. The result, therefore, is that all the appeals are dismissed. The parties will bear their own costs in all these appeals.
5. I agree.