JUDGMENT

Dalal, J C - This second appeal raises an important point of law and I am somewhat hampered in its decision by an unreported judgment of a learned Judge of this Court, dated 21st January, 1921, on nearly the same facts as arise in this appeal (Second Civil Appeal No. 187 of 1920). The plaintiff is a lessee of the zamindar of the village of Intgaon and the defendant Dawan Singh claims to be an under-proprietor. The declaration sought by the plaintiff is that Dawan Singh is only a tenant. The cause of action accrued for a declaratory suit because the revenue Court refused to allow interest to the plaintiff in a suit for recovery of arrears of rent from the defendant on the ground that the defendant was an under-proprietor and not liable to pay interest.

2. The defendant is in possession of three holdings which were at the time of the first settlement in 1869 in the possession of three separate holders: his father Ramhet Singh and his two uncles Ramphal Singh and Ramcharan Singh. Along with other holders of land, who claimed to be old proprietors of the village, these three men sued the proprietor Thakurain Raghunath Kuer at the time of the settlement for a declaration that they were under-proprietors. A number of separate suits were filed and the principal suit was that of one Prag Singh. The Assistant Settlement Officer passed separate decrees in favour of the different suitors on 1st June, 1869, (Exhibit 7). Both parties appealed in every suit: the lady proprietor against the declaration of an under-proprietary title in favour of the agricultural holder, and the suitor on the question of rent. The lady succeeded in her appeals and the Settlement Officer held on 22nd September, 1869, in all the different suits that the agricultural holders were merely occupancy tenants and not under-proprietors. The assessment made by the Assistant Settlement Officer was upheld. Separate decrees were undoubtedly passed in every case though one common judgment was delivered in Prag Singh's case as was done by the Assistant Settlement Officer-see Exs. 1 to 6 and 9 to 11.

3. Prag Singh appealed to the Financial Commissioner who set aside the decree of the Settlement Officer and restored that of the Assistant Settlement Officer. The decree of Financial Commissioner was passed on review on 24th February, 1870, (Ex. A-40.)

4. It may be taken as certain that only one agricultural holder, Prag Singh, appealed, and the decree of the Financial Commissioner was passed in his case only. At the same time, it is also certain that this finding and decree were taken to govern the cases of all similar agricultural holders of village Intgaon and entries were made in the settlement record accordingly of all of them being under-proprietors. According to this construction of the decree of Prag Singh, as one passed in favour of Prag Singh in his representative capacity, the names of Ramhet Singh, Ramphal Singh and Ramcharan Singh were recorded as under-proprietors in Khewat Register No. 5, prepared under Section 56 of Act No. XVII of 1876. In the earlier khatauni prepared under Circular No. 23 of 1864 they were also recorded as under-proprietors (Ex. A-47).

5. The question, therefore, is whether the defendant can take advantage of the decree of the Financial Commissioner in Prag Singh's case or whether his three predecessors-in-interest must be treated as occupancy tenants only, in accordance with the decree of the Settlement Officer dated 22nd September, 1869. In a similar case of the same village a learned Judge of this Court held, as pointed out by me above, that the order passed by the Settlement Officer became final in the case of those agricultural holders who did not appeal to the Financial Commissioner and that they must be treated as occupancy tenants only. It does not appear, however, that in that case any argument was advanced that Prag Singh's case must be treated as one in his representative capacity and may be taken advantage of by Ramhet Sing