1. These appeals are preferred by the plaintiff against decisions of the District Judge of Birbhum affirming decision of the First Munsif at Rampurhat.
2. The suits were brought to recover khas possession of certain resumed chaukidari chakran lands together with mesne profits. The plaintiff claimed these lands as included in the putni taluk granted to his predecessors in interest by the first defendant, who is the Zemindar, by a putni patta of the year 1833, the Bengali date being the 29th Kartik 1260. It is not disputed that the lands in question were included in the putni patti but it is said that these lands were not taken into account in settling the rent payable under the patta and that consequently the Zamindar, the respondent, is entitled to a share of the rent derived from settling the resumed lands with tenants. No dispute arises with regard to the payment of the Government revenue which has been assessed on the resumed lands and which, under the terms of the putni, patta, is payable by the appellant. It is conceded that, from the time of the creation of the putni until the lands were resumed, the chowkidars rendered private personal service to the putnidar and not to the Zemindar.
3. The First Court declared the appellant's title to the lands in suit and decreed khas possession on condition that the appellant paid to the Zemindar in respect of the resumed lands an additional rent to that named in the putni patta. The appellant was awarded means profits. The District-Judge affirmed this decision and remanded the cases to the First Court (1) for determination of the conditions and terms under which the patnidar was to hold the lands under the Zemindar, 47 Ind. Cas. 840 for the ascertainment of mesne profits.
4. The appellant resists the Zamindar's right to share in the rents and profits derived from the settlement of the resumed lands, firstly, on the ground that the lands are comprised in the putni patta and that consequently the rents and profits are his, secondly, on the ground that these rents and profits must be taken as the equivalent of the personal service formerly rendered to him by the chaukidars prior to the resumption.
5. The Zemindar respondent, as already stated, claims a share of the rents and profits as be says that these lands were never taken into account when the jama was fixed and he relies on a long series of decisions, to which we have been referred, as establishing the Zemindar's right to a share of the rents and profits, in addition to the amount payable to the chaukidari fund under the provisions of Act VI of 1870, unless it can be shown that the lands Were taken into account in fixing the jama when the patni was created. These decisions have recently been considered and followed in the case of Bejoy Chand v. Krishna Chandra 66 Ind. Cas. 357 : 34 C.L.J. 275 which was decided in December 1920, and no useful purpose would, we think, be served by going through them again, They undoubtedly do support the contention urged before as on behalf of the Zemindar respondent and it is useless to suggest that they are in the main distinguishable from the causes before us. But, with the exception of the case of Bejoy Chand v. Krishna Chandra 66 Ind. Cas. 357 : 34 C.L.J. 275 above referred to, they were all decided prior to the decisions of the Judicial Committee in Ranjit Singh Bahadur v. Kali Dasi Debi 40 Ind Cas 981 : 44 C. 84 : 21 C. W.N 609 : 32 M.L.J. 65 : 15 A.L.J. 390 : 25 C.L.J. 499 : 19 Bom L.R. 462 : (1917) M.W.N. 459 : 6 L.W. 101, 2 P.L.W. 1 : 22 M.L.T. 489 : 41 I.A. 117 (P.C) and Ranjit Singh Bahadur v. Maharaj Bahadur Singh ( 10). By the first of these decisions it was for the first time finally established that the Zemindar at the time of the Permanent Settlement obtained or retained in the chaukidari chakran lands situate within the territorial boundaries of a village comprised in his Zemindari an interest capable of being made the subject of a patni lease and in Ranjit Singh Bahadur v. Maharaj Bahadur Singh 48 Ind. Cas. 262 : 46 C. 173 at p. 180 : 16 A.L.J. 964 : 35 M.L.J. 728 : 23 C.W.N. 198 : 25 M.L.T. 8 : 29 C.L.J. 193 : 1 U.P.L.R. (P.C.) 23 : 21 Bom. L.R. 506 : 10 L.W. 83 : 45 I.A. 162 (P.C.) ubi supra, where the nature of the patnidar's rights in resumed chaukidari chakran lands was considered, it was laid down that upon the resumption of such lands by Government the rights of the patnidar were those conferred on him by the estate and interest created by the patni lease and that it was this right which was kept, alive by Section 51 of Bengal Act VI of 1870.
6. By the joint effect of these decisions the patnidar's interest in such lands if, as here, they are comprised in his patni is derived from the patni itself and from nothing else. This being so it is difficult to see on what principle the Zemindar can claim to vary the patni by enhancing the rent in respect of lands which were included in the original demise even assuming that the profits of these lands were not taken into account in fixing the rent. The learned Vakil for the respondent has not been able to suggest to us any principle, although by way of analogy he prays in aid the assessment by Government of additional revenue in respect of these lands This analogy, however, cannot assist him as the Government's right to make such assessment is derived from the provisions of Act VI of 1870 and is, therefore, a right conferred by Statute.
7. Under the circumstances stated above we do not think that the decisions relied on by the respondent Zemindar on be taken now to be correct and the case of Bejoy Chand v. Krishna Chandra 66 Ind. Cas. 357 : 34 C.L.J. 275, (ubi supra), admittedly only follows these decisions. We think it would not be correct to lay that, the patnidar is only entitled to obtain possession on terms and that the Court is to assess rent on these lands when it has been held that his title accrued from the time of the patni settlement. We agree with the decisions in the cases of Nalinakhya, Basu v. Bijoy Chand Mahatap 40 Ind. Cas. 395. and Monohar Mukherjee v. Kali Das Nandi 47 Ind. Cas. 840. In the result these appeals succeed and we set aside that portion of the decision of the District Judge which remands the cases to the original Court to determine the conditions and terms under which the patnidar is to hold the lands under the Zemindar. The rest of the remind order will stand. That portion of the Munsif 's decree which imposes on the appellant, as a condition of obtaining khas possession, the payment of additional rent to the Zemindar respondent will be set aside. The appellants will be entitled to their costs in this Court and in the lower Appellate Court.