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contrary in a suit under the Act. The prevailing rates here referred to are in most cases the village or pergunnah rates. These pergunnah and village rates can still be ascertained in most parts: although in some places it is difficult to fix upon any rate from want of uniformity.2

The occupancy ryot is also entitled to claim an abatement from his rents on grounds corresponding to those on which the rent can be enhanced; namely, if the area of the land has been diminished by diluvion or otherwise; or if the value of the produce or the productive powers of the land have been decreased by any cause beyond the power of the ryot; or if the quantity of land held by the ryot has been proved by measurement to be less than the quantity for which rent has been previously paid by him.3

It would seem that occupancy ryots can neither be made liable to enhancement nor have the benefit of an abatement in case of dispute without a suit under the Act. In other cases of enhancement the parties are left to the ordinary law.* It has been held, with reference to the right to enhance, that one of several joint proprietors may sue to enhance his share of rent without having had a partition (butwara) of his holding; but this, according to the principle of later cases, would only be allowed when the plaintiff had received separately his share of the rent. And a farmer under a lease for a term of years may enhance.6

1 Act X of 1859, s. 5. Act VIII of 1869 (B.C.), s. 5.

2 Robinson's Land Tenures, 27.

'Act X of 1859, s. 18. Act VIII of 1869 (B.C.), s. 19.

Ranee Shurno Moyee v. Blumhardt, 9 W. R., 552. Chunder Coomar Banerjee v. Azeemooddeen, 14 W. R., 100.

• Troylochotaran Chowdhry v. Muthoora Mohun Dey, W. R. (1864), Act X, 41.

• Rushton v. Girdharee Tewaree, Marshall, 331.

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Right of measurement.

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By Act X of 1859, section 13, and Act VIII of 1869 (B.C.), section 14, even the ordinary ryot is to some extent protected from enhancement. These sections provide that "no under-tenant or ryot, who holds or cultivates land without a written engagement, or under a written engagement not specifying the period of such engagement, or whose engagement has expired or has become cancelled in consequence of the sale for arrears of rent or revenue of the tenure or estate in which the land held or cultivated by him is situate, and has not been renewed, shall be liable to pay any higher rent for such land than the rent payable for the previous year" unless a notice shall have been served upon him as prescribed in the section "specifying the rent to which he will be subject for the ensuing year, and the ground on which an enhancement of rent is claimed." It has been held that under these sections a ryot's rent can only be enhanced up to a reasonable rate and of course it cannot be enhanced at all if the terms of the pottah exclude enhancement. A claim to enhance assumes the existence of some right of occupation in the tenants.

Measurement is spoken of in connexion with enhancement and abatement of rent. The landlord has a right to measure the land held by his tenant. We have seen that tenants very frequently in former times held more land than was avowed and paid for, and that the threat of measurement was an effective mode of exaction.*

'Bakranath Mandal v. Binodram Sen, 1 B. L. R., F. B., 25; 10 W. R., F. B., 33, s.c.

• Punchanun Bose v. Peary Mohun Deb, 2 W. R., 225.

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455.

3 Baboo Dhunput Singh v. Gooman Sing, 11 Moore's I.A., 433, at p. Bamasoondery Dassyah v. Radhicka Chowdhrain, 13 Moore's I. A., 248 For the mode of measurement, see Whinfield's Landlord and Tenant, 178.

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It has now been enacted as a general rule by Act VI of 1862 (B. C.), section 9, re-enacted by Act VIII of 1869 (B. C.), section 25, that "every proprietor of an estate or tenure, or other person in receipt of the rents of an estate or tenure, has the right of making a general survey and measurement of the lands comprised in such estate or tenure, or any part thereof, unless restrained from doing so by express engagement with the occupants of the lands." It has been held upon this that the zemindar may measure a talook held at a fixed rent; and where talooks had been sold by the talookdar with a proviso that the purchaser should get his name registered in the zemindar's sheristah and pay rent accordingly, but the purchaser (the defendant) had not been registered, and had paid his rent to the assignee of his vendor and to his mouroossee lessee, the plaintiff, it was held that the plaintiff was entitled to measure because the land had not been sufficiently disconnected from his talook. The landlord, in order to be entitled to measure, must be in possession or receipt of the rents. The ryot is also entitled to have his land measured, but this right merely depends upon general principles. If

'Oomachurn Biswas v. Shibnath Bhagchee, 8 W. R., 14. Baboo Run Bahadoor Singh v. Mulooram Tewaree, ib., 149.

2 Tweedie v. Ram Narain Dass, 9 W. R., 151.

Rajchunder Roy v. Kishen Chunder, 4 W. R., Act X, 16. Doorga Churn Doss v. Mahomed Abbas Bhooyan, 14 W. R., 399; 6 B. L. R., 361, s. c. Doorga Churn Doss v. Mahomed Abbas Bhooyan, 14 W. R., 121. Kalee Doss Nundee v. Ramguttee Dutt Sein, 6 W. R., Act X, 10. Smith v. Baboo Nundun Lal, ib., 13. Huradhun Dutt v. Hazee Mahomed, ib., 14. Pureejan Khatoon v. Bykunt Chunder Chuckerbutty, 7 W. R., 96.

Durpnarain Raee v. Sreemunt Raee, S. D. A. (1849), 188. See Afsurooddeen v. Mussamut Shorooshee Bala Dabee, Marshall, 558. Ram Churn Bysack v. Lucas, 16 W. R., 279.

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Division of zemindaries.

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the lands measured are found to be in excess of those included in his lawful holding, he may be treated as a trespasser as to the excess; or he may be charged rent for it, at a fair and equitable rate according to Mr. Justice Phear, or at the rate paid for the lands included in his pottah according to Mr. Justice Bayley; or at the pergunnah rate in the case of jungleboory talooks. Act VI of 1862 (B. C.), sections 9, 10, 11, and Act VIII of 1869 (B.C.), sections 37 to 41, provide for assisting the person entitled to measure and for the standard of measurement. Under these provisions it has been held that one shareholder of an estate cannot obtain the aid of the Collector for the purpose of measurement.*

We have seen that the zemindar has no longer his former power over the ryots: he cannot now enforce their attendance for any purpose,5 and is simply restricted to his rights as a landlord.

The zemindars were vested at the Permanent Settlement with the power to dispose of their lands more freely than they had theretofore been able to do. At the same time provisions were made for a division of the zemindary under certain circumstances. Thus, it was provided that when there were several joint-proprietors of a zemindary, and some were disqualified, the jumma should be settled by the majority, but a dissatisfied shareholder might have his

1 Rajmohun Mitter v. Gooroo Churn Aych, 6 W. R., Act X, 106.

2 Golam Ali v. Baboo Gopal Lal Thakoor, 9 W. R., 65.

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Khaja Arathoon v. Mussamut Kureemoonissa, 3 Sel. R., 34. Mahomed Bahadoor Mojoomdar v. Rajah Rajkishen Singh, 15 W. R., 522. Moolook Chand Mundul v. Modhoosoodun Bachusputty, 16 W. R., 126.

5 Act X of 1859, s. 11. Act VIII of 1869 (B. C.), s. 12.

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share separated at his own expense. And at the Permanent Settlement these provisions were supplemented by further provisions for division of zemindaries. Regulation I of 1793, section 10, clause 1, provides that all private transfers and divisions shall be notified to the Collector in order that the jumma may be apportioned, and the shares with the jumma registered, and that separate engagements may be executed by the proprietors, who will thenceforth be considered as actual proprietors of land. The section further provides that if such notification is not made, the whole estate will be held liable as if no transfer or division had taken place; and that, if lands be disposed of as a dependent talook, the dependent talookdar's jumma will not be registered, nor will the rights or claims of Government against the lands for the whole revenue be affected. The section then lays down the principles of assessment of the jumma in case of a sale of the whole of the zemindary in lots, and of a portion in one or several lots. The 11th section provides for the sale in lots or otherwise of lands held khas or let in farm. Regulation XXV of 1793 provides that in dividing revenue-paying estates the shares shall be rendered as compact as possible. For the purpose of apportioning the jumma, the officers of Government are to have access to the accounts of the gross collections, the Regulation declaring that the proprietors cannot, under the provisions of the Permanent Settlement proclamation, object to produce their accounts in such a case. It is also provided that the proprietors of two or more estates, which have originally formed part of the same zemindary, talook, or chowdrai, shall be allowed to

'Regulation of 23rd November 1791, arts. 22 to 24. Regulation VIII of 1793, ss. 23 to 26.

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