JUDGMENT
1. The plaintiff is the Zemindar of the village Tehra in the Mnttra Distriat. The defendants are desaribed as the former biswadars' (biswadaran sabiq) of the village. The plaintiff stated that they were liable to pay Rs. 160 per year for the land in their possession and he sued them for the recovery of the amount due for the years 1321, 1322 and 132a Fasli. The defendants pleaded that the revenue for Kharif 1321 Fasli had been remitted by the Government and the revenue payable for Rabi 1321 and Rabi 1323 Fasli had been suspended and that they were entitled to the benefit of the remission and suspension above mentioned. They deposited Rs. 200 on account of the rent for the period for which no suspension or remission had been granted.
2. The Court of first instance deareed the claim for 1322 and Kharif 1323 Fasli, but the lower Appellate Court extended the decree to Kharif 1321 Fasli. The ground on which the lower Appellate Court proaeeded was that inasmuch as the rent payable for Rabi 1321 and Rabi 1323 Fasli was liable to be paid 21 days before the revenue became payable in each half year, and the payment of the revenue for Rabi 1321 and Rabi 1323 Fasli had been suspended, the claim for those periods was premature. With regard to Kharif 1321 Fasli the view taken by that Court was that the defendants were not entitled to the benefit of the remission of revenue granted by the Government, because the wajib-ul-arz in which the nature of the tenure held by the defendants was recorded, did not mention that they would be entitled to the benefit of any remission made by the Government.
3. The exact nature of the tenure held by these" former biswadars" is not clearly ascertainable. It apears from the report of the Settlement of the Muttra District that certain taluqat, which originally belonged to the Aligarh District, were transferred some time prior to that Settlement to the Muttra District, and that in those taluqat there was a class of subordinate tenure-holders called hiswadars, who owned biswa interests in the village but were not admitted, on account of the small fractional interests they held, to a direct engagement for the payment of revenue by the then Government. These biswadars were in possession and enjoyment of the land or shares held by them and used to collect rents from the tenants cultivating the land of which they were the biswadars, and paid a certain amount of malikana allowance to the taluqdar or over-proprietor, with whom the engagement for the payment of the Government revenue was made. When the last Settlement of the Muttra District took place, it was found that some of these biswadart had at some time or another either abandoned their biswa interests or had been ejected. They, however, claimed to be in possession of certain holdings by reason of their being the old biswadart or former proprietors (biswadaran sabiq), and an arrangement was come to by virtue of which they were allowed to remain in possession of their old holdings and to collect rents from the tenants cultivating those holdings, subject to their paying a certain amount of what might be called rent to the taluqdar or proprietor with whom the Settlement was made, The wajib-ul-arz of the village Tehra prepared at the Settlement accordingly recorded that the "former biswadars"(biswadaran sabiq) were liable to pay Rs. 2,400 per year to the proprietors of the village after realising from the tenats, whether occupancy or non-occupancy, the rents payable by them, the revenue and cesses payable for the village by the proprietors being Rs. 1,711. It was further stated there that the said amount was payable 21 days before the Government revenue would fall due and that if that amount was not paid, they would be liable to ejectment. These incidents were apparently the incidents of the tenure under which the "former bis-wadart" held the land in the villege, and by virtue of that tenure they are liable to pay the amount therein mentioned to the taluqdors or proprietors out of what they are entitled to collect from the tenants of the village.
4. It is difficult, however, to say that their position is analogous to that of thekadars or tenants within the meaning of Section 51 of the Agra Tenancy Act (U.P. Act No. II of 1901), because the wajib-ul-arz was Dot verified by them and does not purport to evidence any specific contract entered into between them and the proprietors. They apparently held under some arrangement, which existed from before the time of the Settlement and was then maintained. Their rights to some extent are defined by the wajib-ul-arz, and though the wajibul-arz does not make any reference to what would happen if there was a remission or suspension of the revenue, it is reasonable to conclude that if they are not entitled to collect any rent from the tenants themselves, they would not be liable to pay the amount payable to the superior proprietor, because they are only liable to pay the amount mentioned in the wajib-ul-arz 21 days before the Government revenue becomes payable.
5. If no Government revenue is payable by virtue of the remission granted by the Government, it stands to reason that nothing can be demanded from them for the period for which such remission has been made, because they themselves will not be entitled to collect any rent under Section 51 of the Agra Tenancy Act from the tenants from whom they used to collect rents before the remission was granted.
6. It is not possible at the same time to say whether the rights of "former biswadars" (biswadars sabiq) are similar to those of biswadars proper, because according to the wajib-ul-arz the former are liable to ejectment in a certain contingency. In a previous suit filed by Gobind Ram against Krishna and Ram Kishun (Second Appeal No. 1021 of 1902) decided on the 30th of January 1905, it was held that the "former biswadars" occupied a position resembling that of a thekadar or farmer of the proprietary rights, that they were neither under-proprietary holders nor lessees and that a suit for rent was maintainable against them in the Civil Court on the strength of the contract embodied in the wajib-ul-arz. As the old biswadars did not verify the wajib-ul-arz, it cannot be said that what was recorded in the wajib-ul-arz was not a recital of a preexisting arrangement but a contract entered into between them and the superior proprietors at the time. In the absente of any proof of such a specific contract or necessary incident of the tenure to the contrary or of any law regulating the relations between the Zemindars and these old biswadars, we have to fall back under Section 37, Clause (2), of Act XII of 1887 on the rule of justice, equity and good conscience and enforce such equity as the circumstances of the case might justify. If they are privileged lessees or ex-proprietary tenants of some kind, holding under a special arrangement, the result would still be the same, for under Sections 196 and 197 of the Agra Tenancy Act the question of jurisdiction is not material. We have already pointed out that under the ordinary conditions, if a remission of revenue is granted by the Government, the old biswa-dart could not have been entitled to collect any rent from the tenants and if that is so, they could not have been in possession of any fund from which the rent demanded by the Government can be payable. The decision in Shiam, Lal v. Makhan Lal 2 Ind. Cas. 629 does not apply, because in that case the rights of the parties were determined by a lease and the terms of the order of remission were not proved. It is here admitted that rents for Kharif 1321 were remitted. The view taken by the lower Appellate Court cannot, therefore, be sustained. We allow the appeal accordingly and setting aside the decree of the lower Appellate Court, restore that of the Court of first instance. The parties do bear their own costs in the circumstances both here and in the lower Appellate Court.