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Judgment
Ross, J.—These appeals are directed against a decree of the Subordinate Judge of Shahabad dismissing the plaintiff''s claim for apportionment of rents with respect to certain holdings which are partly in his Mahal Naubarer and partly in the adjoining Mahal Gang Barar. The ground upon which the learned Subordinate Judge dismissed the claim was that it was proved that the plaintiff had never realized rents from the tenants defendants for those holdings, and that for more than twelve years the proprietors of Gang Barar, who were made parties to the suit, had realised rents in open assertion that the lands appertained to Gang Barar, it was therefore too late for the proprietors of Naubarar to claim the rents as against the proprietors of Gang Barar. The fallacy in this reasoning is that plaintiff has not claimed rent as against the proprietors of Gang Barar but has claimed rent from the tenants defendants; It was unnecessary to implead the landlords of Gang Barar and they must be dismissed from these actions with costs throughout. But as regards the right of the plaintiff to recover rents from the tenants for the lands in Naubarar, Section 60 of the B.T. Act concludes the matter. It is admitted that the plaintiff is the recorded proprietor of Naubarar and that the Commissioner appointed for this purpose has ascertained the extent of the lands of these holdings which lie within Naubarar. Consequently by the provisions of Section 60 of the Bengal Tenancy Act, the plaintiff is the only person to whom the tenants are entitled to pay rent for these lands lying within Naubarar and they cannot be permitted to set up the title of the proprietors of Gang Barar.
The only other quest ion in the appeal is whether the plaintiff is entitled to recover cess from the tenants. Under the provision of Section 41 of the Cess Act every cultivating raiyat is to pay to the person, to whom his rent is payable one-half of the road cess. It was suggested that the Cess Act does not prevail in the U.P., but this estate is now borne on the Register of the Collector of Shahabad and the Act is in force over this estate.
The result is that the appeals must be decreed with cost with the exception of S.A. No. 213 of 1922 and the cases must be remanded to the Court below in order to assess the proper rent payable by the tenants for the lands found by the Commissioner to be included in Naubarar. At the same time the defendants'' second party, proprietors of Gang Barar, will be dismissed from these actions with cost in all the Courts. As the Commissioner has not found that in Suit No. 264 any lands are within Naubarar, S.A. No. 213 of 1922 arising out of this suit must be dismissed with cost.
Das, J.
I agree.