- (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.;