The main legal point established in the judgment is the presumption of the faisal rate as the proper rent and the non-binding nature of the lower rate unless granted for specific reasons.

Phillips, J.

1. This is a rent suit and the point for determination is the amount of rent payable by plaintiff: to defendant. Prior to 1859 a faisal rate was fixed on the land by Government, but admittedly plaintiff has for many years, certainly for more than 35 and possibly for 40 years, been paying a lower rate called in the muchilika the jamabandi rate. In the ntuchilika the faisal rate is also mentioned and the road cess payable is calculated on it. It has not been proved that the jamabandi rate was in force prior to 1859 and consequently under Section 11 of Act VIII of 1865 the proper rate payable on the land would be the faisal rate. This provision of the Rent Recovery Act (1865) is not reproduced in the Estates Land Act. 1908, and it is contended for the appellant-plaintiff that there is now no presumption that the faisal rate is the proper rate. Although there is no such presumption raised by the Statute, yet I think that the existence of a faisal rate is a very strong piece of evidence as to what the proper rate should be Tine faisal rate is fixed by Government as the fair rental of the land, and upon the faisal rates the peshkush and cesses are calculated and conse quently the faisal rate should ordinarily be taken as the proper rent that can be levied on the land, and we see that in Palani v. Paramasiva 13 M. 479 : 4 Ind. Dec. (N.S.) 1046. it was held that a purchaser at a revenue sale was prima facie entitled to demand the faisal rate, although the tenants pleaded a contract with the former landholder at a lower rate. In the present case we find the faisal rate specifically mentioned in the pattas and muchilikas, and the road cess payable by the tenant is calculated upon it. Notwithstanding the omission from the Estates Land Act of the provision in Section 11 of Act VIII of 1865, I would hold that the faisal rate is the proper rate of rent for the lard. This being so, is defendant entitled to charge that rate in spite of the contract between plaintiff and defendants predecessor to charge lower rate? Under Section 26 (3) of the Estates Land Act "Except as provided by Sub-section (1) no rate of rent at which land may have been granted by a landholder shall be binding upon the person entitled to the rent after the lifetime of the landholder if such rate is lower than the lawful rate payable by the ryot before the date of the grant upon the land or upon land of similar description and with similar advantages in the neighbourhood." Unless therefore the lower rate has been granted to the tenant for some reason specified in Clause (1) of the section, the lower rate is not binding on defendant. Plaintiff has failed to show that the lower rate was granted for any of the reasons specified in Clause (1) and even if any presumption could be drawn that such reasons existed when the rent was originally reduced, plaintiff has failed to show that such reasons still exist. I, therefore, hold that the lower rate is not binding on defendant.

2. In some of the appeals connected with this one, a question of res judicata arises. There were formerly two mittadars of the suit estate, one of whom died. The surviving mittadar and the heir of the deceased mittadar Sled suits in 1885 claiming rent at the faisal rate and in Second Appeal No. 400 of 1891 this Court made the following order: "The plaint does not allege that the cowle rates were terminated and that plaintiffs are now entitled under, the original agreement to levy the faisal rates. The suit is not framed nor have issues been taken on any such cause of action. The plaintiffs simply claimed the faisal rates. The defendants answered that by contract presumable from uniform payment for 50 years they were entitled to pay other rates.

3. Both Courts have found that there is an implied contract to that effect.

4. The appeal fails and we dismiss it with costs.

5. From this it would appear that the then plaintiffs were not allowed to charge faisal rates, because a contract to pay lower