1. This appeal arises out of a suit for rent. It appears that under the original Zamindari of the plaintiff the defendants or their predecessor-in-interest held a tenure of which the jama was originally 1,002 rupees, and at the time of the resent Cadastral Survey and record of Bights in respect of the District of Faridpur it was found that accretion has taken place to the Zemindari which bore No. 3756. The newly accreted lands were separated from the parent estate and formed into what is spoken of as the Deara Mahal bearing Touzi Mahal No. 6633. Proceeding under the provisions of Act IX of 1847 and Act XXXI of 1853 and the Bengal Tenancy Act, the Settlement Authorities similarity split up the defendant's tenure into two. In so far as it was comprised within the Deara Mahal No. 6633, the Settlement Authorities assessed upon it as payable by the tenure-holders a rent of Rs. 287-6-3 pies while for the remaining portion comprised within the original estate a rental of Rs. 130-8 annas was fixed or recorded by the Settlement Authorities.
2. It has been found by the Commissioner for local investigation whose report has been accepted by the Courts below that in the defendant's tenure 459 bighas 11 cottas 13 chhattaks were in existence at the time when the suit was brought, and it was further found that out of this 459 bighas odd, 405 bighas 5 cottas and in chhattaks app estained to the Dears estate No. 6633 and the remaining 54 bighas 6 cottas 2 chhattaks appertained to the original tenure and to the original estate. In a suit brought in the a year 1897 it was arranged on compromise between the parties that the tenure-holders should pay rent to the Zemindar both on the original land and also on additional lands formed of accretion at the rate of 9 annas 7 pies per bigha. It was held by the Courts below, on the principle laid f down in the case of Muktaheshi Dasi v. e Srinath Das 26 Ind. Cas. 215 : 19 C.L.J. 614, that notwithstanding f what had been done by the Settlement Authorities the plaintiff landlord was not 7 entitled to claim from the tenure-holders anything more than this rate of rent, namely, 9 annas 7 pies per bigha on the land found to be in existence on the date of suit
3. The plaintiff has appealed to this Court, and his contention before us is that, in, so far as the accreted lands are concerned the parties are bound by what has been done by the Settlement Authorities It is conceded that, in so far as the land included within the original estate is concerned the plaintiff-appellant is bound by the compromise and arrangement with the defendant, and in so far as that portion of the tenure is concerned, all that the plaintiff of an claim is rent for the existing land at that rate. To his contention with regard to the Deara land we are of opinion that there is no answer. It is quite true that, at first sight, the case of Muktakeshi Dasi v. Srinath Das 26 Ind. Cas. 215 : 19 C.L.J. 614, might appear to be an authority for the decision arrived at by the lower Courts. But between that case and the present case there is an important distinction which appears to have been overlooked by both the Courts below. In the case of Muktakeshi Dati v. Srinath Das 26 Ind. Cas. 215 : 19 C.L.J. 614, there is nothing to show that proceedings were taken and rent fixed or settled by the Revenue Authorities acting under the Bengal Tenancy Act. Here the record of Bights as finally published shows that as a matter of fast, on the accreted land which was constituted into a new estate and a new tenure rent was not recorded as merely existing but as actually fixed or settled under the provisions of the Bengal Tenancy Act, that is to say, under Section 192 of that Act read with Sections 104 to 104 J. No proceedings have been taken by the defendants under any of those sections to have the decision of the revenue Authorities modified or out aside, By those proceedings under the provisions of those sections the tenants are bound.
4. It follows that we must modify the decree of the court below in the manner following that up to the year 1318 the plaintiff is entitled to recover rent at the old rate and for the years 1319-1820 he is entitled to recover at. The rate fixed by the Settlement Authorities, namely, Rs, 287-5 annas 3 pies in respect of the accreted land and rent in respect of the original land measuring 54 bight 6 cottas 12 chhataks at the rate of 9 annas 7 pies per bigha with cess at 9 pies in the rupee as shown in the Record of Rights and damages as awarded by the Courts below 3 annas in the rupee end costs on the amount decreed with interest on the total amount adjusted and costs at the rate of six per cent per annum.
5. This decree will be only against the defendant-respondent Jogendra Lal Roy.
6. The defendant respondent Troilakhya Nath Munsh appears to have been unnecessarily made a party. He will have half his costs throughout from the plaintiff-appellant.