JUDGMENT
1. This is an appeal from a decision of the District Judge of Chittagong on a reference under Section 18 of the Land Acquisition Act of 1894. The decision under appeal was arrived at on a remand from this Court which prescribed the way in which the lower Court has in fact dealt with the case. The question that the Court had to try under these circumstances was how a sum of Rs. 1,251-10-4 awarded as compensation for land acquired under the Act should be apportioned. The three parties interested are the Government, who are the zemindar, Jagat Chandra Dutt and others described by this Court as jotedars and Shariatullah and another similarly described as under-raiyats, and the lower Court has apportioned the compensation money to these three parties respectively in the proportions of six, three and seven annas.
2. The first question that we have to decide is whether the apportionment of a six annas share to the Government in their capacity as zemindar is correct. The land acquired, namely, 4 56 kanis is part of an area of 1 drone 4 kanis odd of land which was settled with Jagat Chandra in 1898 for fifteen years at a rent of Rs. 20. Were Jagat Chandra’s rent fixed in perpetuity, it would be enough to capitalize this rent according to the rule laid down in Dinendra Narain Roy Y. Sitaram Mukerjee 30 C. 801; 7 C.W.N. 810 in order to arrive at the share due to Government. As this is not the case, this alone will not be sufficient and some other means of calculation must be adopted. The lower Court has seen fit to allow the zemindar 6 annas of the whole compensation chiefly on the ground that this has frequently been done, whether by the consent of the parties or not, in other similar cases. We cannot regard this method of assessment as satisfactory, as it leaves out of sight the question of how much the landlord is actually realising from the land, a fact which must have some bearing on the question of the amount of compensation due to him. We cannot, therefore, uphold the decision of the lower Court in awarding Government a six annas share. But they are, no doubt, entitled to a capitalisation of as much rent as may be found to be payable in respect of the proportion of the holding that is taken together with 15 per cent. for compulsory acquisition, and something more in respect of the possibility of the enhancement of the value of the land hereafter. How this is to be assessed we will consider later.
3. The next point dealt with by the lower Court is Jagat Chandra’s position. We agree with him that he must be taken to be holding now as a raiyat. The chief ground on which the Judge relies for this finding is that when the land was settled in 1898, Jagat was described as a settled raiyat and Shariatulla as an under raiyat. It is argued that when Jagat took possession of the land of which the acquired land is a part, and which he treated as an accretion to his jote, he at once made it over to Shariatullah on a permanent lease, and since then it has been cultivated by Shariatullah who also conducted litigation respecting it. This looks as if Jagat treated it as a tenure-holder, but the action of the Government in settling it as they did was acquiesced in by both parties and the question whether Jagat is not a tenure-holder is raised in this case for the first time. The conclusion to be drawn from the action of the Government is, therefore, not rebutted; and we hold that Jagat is now a raiyat and Shariatullah an under-raiyat. Taking Jagat Chandra to be a raiyat, we have to consider the relation in which he stands to Shariatullah. In the Court below, the latter set up a claim to a permanent dur-raiyati right by a custom. This failed and has not been pressed before us.
4. Jagat, however, has again raised a contention that he failed to substantiate in the lower Court to the effect that the permanent lease he granted to Shariatullah is void by force of Section 85(2) of the Bengal Tenancy Act as being a sub-lease by a raiyat for a term exceeding nine years.
5. That, however, is not a complete statement of the question between Jagat and Shariatulla, because it appears that on the one hand when the lease was granted in the year 1894, the condition of things was such that there would seem to have been then no bar to the registration of the lease and, on the other hand, rent is now being paid not under the lease but under the settlement of the year 1898. In the peculiar circumstances of the case and for the particular purpose in view, it is, in our opinion, unnecessary to base our decision of the question before us on the question to what extent (if any) the relationship between Jagat Chandra and Shariatullah is governed by the lease or to consider the effect of the various cases which were cited at the Bar in connection with the provisions of Section 85 of the Bengal Tenancy Act. It is sufficient to say that regard being had to the history of the land and of Shariatulla’s connection therewith to the status quo when the proceedings under the Land Acquisition Act were commenced and to the probability that the state of things which then existed would have continued at any rate till the expiry of the term of the present Settlement, we see no reason to differ from the learned District Judge as to the proportion in which the balance of the compensation available after deducting the amount payable to Government should be divided between them. Such a division will, in our opinion, meet the justice of the case.
6. In the result, therefore, we hold that the compensation should be apportioned among the three parties concerned as follows. Government receives a rent of Rs. 20 from the property-we need not consider the loss of Government revenue from the present point of view-and it loses a chance of enhancing the rent of the land after the termination of the 15 years. This will amount to something, though as we may suppose that the land is best used as a brick field, it will not amount too much. We, therefore, award to Government so much of the compensation as will correspond to thirty years’ purchase of the rent that accrued due in respect of the land which in this case is to be taken to include the 15 per cent. taken. As to the relative interest of Jagat and Shariatullah, though the figure in the case may give us some indication of how to assess them, we prefer to follow the plan adopted by the lower Court and direct that after Government’s claims have been settled, the balance of the compensation money shall be awarded to Jagat and Shariatulla in the proportions of 3 to the former and 7 to the latter.
7. The appeal is allowed accordingly, and the case is remitted to the lower Court that the compensation may be awarded on the lines we have indicated. Jagat is entitled to his costs against the Government and Shariatulla to his against Jagat.
8. The appellants will be entitled to their costs in the remand order in this case, both here and in the lower Court.
9. We assess the hearing fee at Rs. 100 to be divided according to the respective shares.
