Judgement

APPEAL from a decree of the High Court (May 11, 1883), reversing a decree of the Subordinate Judge of Faridpore (June 29, 1881), which had dismissed the Respondents suit with costs.

The decree of the High Court (Cunningham and Maclean, JJ.) was to the effect that the Respondent should have khas possession of certain of the lands in suit to be ascertained by reference to a map made by the Court Ameen.

The facts are stated in the judgment of their Lordships.

C. W. Arathoon, for the Appellants.

Leith, Q.O., and Doyne, for the Respondent.

Jardine, Skinner & Co. v. Rani Burnt Soondari Debi (Law Rep. 5 Ind. App. 164.); Shadhoo Singh v. Ramanoograha Lall (9 Suth. W. R. 83.) ; Jadubchunder Haldar v. Etwaree Lushkur (Marsh. 498.), were referred to.

The judgment of their Lordships was delivered by

LORD WATSON—

The arguments upon this appeal had reference mainly to the construction of the following stipulations in a kabulyat, dated the 23rd of April, 1850, executed by the then tenants, under a howladari tenure, of certain lands comprised in " the chur to the east of Makhuakhali" forming part of the zemindary now belonging to the Respondent—

"If a new chur accretes contiguous to the aforesaid howla, and as hakiat of the aforesaid (torn), and no revenue is assessed thereon by the Government, then, when the said chur becomes fit for cultivation, a fresh measurement shall be made of the land of the said chur and of the aforesaid howla; and after a deduction of the aforesaid 13. 6. 16 gundahs of land, we shall pay rent at the rate of Rs.2 la. 7p. for the excess of land up to five drones, and at the sara (prevailing) pergunnah rates for land exceeding that quantity. If we fail to do so, the rent will be realized according to the law for the realization of rent, with interest on lapsed instalments according to the demands of the towzi of the said pergunnah; or at the close of the year, you will serve on the spot, and on some conspicuous place in the mahakuma (head quarters) of any hakim, an itlanama (notice) to our address, requiring us to take a settlement of the said excess land, and to file a kabulyat, and fixing the time at fifteen days; if, thereupon, we do not appear before you and take a settlement and fix a kabulyat, you will settle the said excess lands with others."

The 13. 6. 16 gundahs thus referred to was the original extent of the cultivable howla, and the rent payable for it was fixed by the kabulyat at Rs.462. In a suit brought by the zemindar in the year 1865, it was found that 2. 11. 13 gundahs, &c, had accreted to the said 13. 6. 16 gundahs, and that for such excess additional rent was payable at the rate of Rs.2 7a. 1p. per khani in terms of the kabulyat of 1850. The Appellants have since continued to be tenants of the howla and said accreted lands, amounting in all to 16. 2. 9 gundahs, &c, at a cumulo rent of Rs.570 la. lp., &c.

It is not matter of dispute that, at the commencement of the year 1876, a new chur had accreted to the howla in question, which was to a large extent composed of land fit for cultivation. The Respondent alleges that, in April of that year, a new measure ment of the original howla and of the accreted chur was made by his servants under his instructions. The measurement was made without intimation to the Appellants, and in their absence. The Respondent thereafter, on the 28th of March, 1878, caused a notice to be served on the Appellants, who are the registered tenants of the howla, setting forth the fact of measurement, intimating the precise amount of the increased rent due in respect of the excess land, according to the rates specified in the kabulyat, and requiring the Appellants to appear, either before himself or his principal officer, within fifteen days from service, " and file a kabulyat for the said quantity of land and for the said amount of rent; otherwise after the expiry of the said fixed period, under the terms of the said kabulyat, I shall take khas possession of the land in