1. In this appeal we are concerned with the chowkidari chukran lands of Mouza Someparah.
2. These lands were resumed by Government in 1898, and were thereafter transferred to the Zemindar (the Maharajah of Burdwan) subject to an annual assessment of Rs. 51-5-0. By a lease, dated 10th Chait 1308, the Maharajah next let out the lands to respondent No. 2 at a yearly rent of Rs. 77, and he in his turn has settled upon portions thereof cultivating tenants who in this appeal are respondents Nos. 3 to 26.
3. The plaintiff-appellant is the owner of an eight-anna share in the Putni of Mouza Someparah and the only question argued before us is whether the chowkidari chakran lands of the Mouza were excluded from the Putni.
4. It is now common ground that the term's upon which the grant of the Putni was made are embodied in a kabuliyat (Exhibit B) executed by one Radharaman Thakur in favour of the Zemindar on the 21st Ashar 1216, corresponding with the 3rd of July 1809.
5. The grant is it respect of the whole Mouza and unless we find provision to the contrary, the chowkidari chakran lands, being part of the Zemindar's estate in the Mouza, we must hold to be included.
6. The kabuliyat expressly reserves or excepts certain lands falling under three descriptions, namely, (1) the house, garden and tank in the Zemindar's khas possession, (2) tanks, and the like covered by sanads granted prior to the date of the Putni, and (3) aymahs antecedent to the Zemindari.
7. Between the provisions relating to the 2nd and 3rd of these three classes we find a clause which has been properly translated thus:
If any chowkidar attached to the Police Cutchery die or go away...and if it be necessary to make a change (i.e., appoint or dismiss), you (i. e., the Zemindar) shall make the same and with that I shall have no concern.
8. With this clause the Judges of both Courts below have considered the question whether the services expected of chowkidars in addition to the performance of their duties as village watchmen were rendered to the Zemindar, or to the Putnidar. Their findings, as we read them, appear to be that such services were rendered neither to Zemindar nor to Putnidar and, in any event, that of the rendering of such services to the Putnidar no satisfactory evidence has been given. Even then if such evidence be admissible the findings arrived at are of no assistance to us in the present case.
9. The contention of the respondents which found favour in both the lower Courts is that the clause set out above imports the exclusion of the chowkidari chakran lands.
10. In at least three oases kabuliyats of about the same period, and in terms very similar to those contained in the one now under consideration, and all executed in favour of the Burdwan Raj have been construed by this Court. Of these cases one reported as Nitya Nund Hazra v. Maharagadhiraj Bejoy Chand Mohatab 7 C.L.J. 593 lends support to the contention of the respondents, while in two, the decisions, namely, the first in an un-reported case Second Appeal No. 2114 of 1903 and the second in the case reported as Girish Chandra Roy v. Hem Chandra Boy 5 C.L.J. 28 assist the contrary contention of the appellant.
11. These decisions not being between the same parties and the documents' also being different are not of course binding upon us in the present case.
12. We, however, agree with the view taken in Girish Chandra Roy v. Hem Chandra Roy 5 C.L.J. 28 that the clause which reserves to or confers upon the Zemindar the right to appoint or dismiss chowkidars has not the effect of reserving to the Zemindar and of excluding from the Putni the chowkidari chakran lands.
13. In the result this appeal succeeds. The decrees of the lower Courts are set aside and there will be a decree declaring that to the extent and in respect of his 8-annas share plaintiff-appellant is entitled in Putni right to the lands in suit subject to the annual assessment fixed or approved by the Collector. To the same extent he will recover possession from and jointly with respondents Nos. 2, 27 and 28 The decree will not authorize him to disturb the possession of tenant respondents Nos. 3 to 26, but will entitle him to receive rent from the said defendants in respect of his share. He will further recover mesne profits for the 3 years prior to suit from respondents Nos. 1 and 2, such profits to be ascertained in the manner provided in the Civil Procedure Code, Order XX, Rule 12(1), Clause (6). The plaintiff appellant will further have his costs throughout from respondents Nos. 1, 2 and 28. The decree for costs in favour of original respondent No. 27 who has not been made a party to this appeal remains unaffected by this decision.