Wort, J.This was an action for rent by the appellants against the defendant who was also in possession of 8 annas proprietary interest with the plaintiff. The defendant purchased in execution of a rent decree certain holdings belonging to a tenant and proceeded to occupy them. In those circumstances the plaintiffs claimed rent for the years 1331.34 Fs. It is perhaps important to notice that the claim the plaintiffs made was for rent, so-called. In para. 4 of their plaint they have stated:

In spite of demands the defendant did not pay the rent in suit. So he is liable to pay interest at twelve and half per cent. per annum.

2. In a later stage, that is to say in the Court of appeal, they wished to amend their plaint by claiming compensation for use and occupation of the land. I suppose this attempted amendment was for the purpose of answering the point which was made against the plaintiffs, namely, that if they were entitled to realise rent from the defendant, then having regard to the findings of the Courts that the greater part of the land could not be cultivated, the defendant was entitled to a remission of rent. In the result the plaintiffs got a decree for rent for some 11 bighas odd out of a total of over 100 bighas.

3. It is now contended (as it was in the Court of appeal below) that the status of the defendant being in possession of a part of the raiyati land and at the same time being a cosharer landlord with the plaintiff, was not that of an occupancy raiyat; and that, as such, although it was shown that a greater part of the land was not capable of cultivation, he was not entitled to remission of rent or reduction of rent u/s 38, Ben. Ten, Act. One case is relied upon for the contention that the status of the defendant is not that of an occupancy raiyat, but that appears to be clear apart from authority for the simple reason that Section 22(2) provides for the circumstances in which a person in the position of the defendant in this action transferred or sublet the land which he held to a tenant in which event the tenant would not be an under-raiyat but an occupancy raiyat or a tenure-holder as the case might be. The case relied upon is the decision in Rambhadur Lal v. Mt. Gungora Kuar 1925 Pat 547 [LQ/PatHC/1925/139] . But there is a decision of this Court based upon a number of authorities in the case of Sukhraj Rai v. Ganga Dayal Singh 1922 Pat 169, [LQ/PatHC/1921/203] which decides that the right to remission exists as a matter of justice and apart from the provisions of Sections 38 and 52, Ben. Ten. Act.

4. The point at issue in the case to which I have just referred was whether the defendant in the action could claim a remission from the rent claimed in contradistinction to bringing an action either u/s 38 or Section 52. The contention of the advocate who appeared on behalf of the plaintiff in that action, that the only remedy the defendant had was to bring an action, was characterised by the learned Judge who decided the case as fallacious. Reference to a passage in that judgment might be conveniently made. The late Sir Jwala Prasad was quoting a decision of Sir Barnes Peacock, C.J., in the case of Anayutullah v. Alaheedbuksh (1864) WR 42 where he said:

If a man stipulates to pay rent, it is clear he engages to pay it as compensation for the use of the land rented; and, independently of Section 18, Act 10 of 1859, we are of opinion that, according to the ordinary rules of law, if a talookdar agrees to pay a certain amount of rent, the tenant of it is exempt from the payment of the whole rent if the whole of the land be washed away, or of a portion of the rent if a portion only be washed away.

5. Then reference is made to the provisions of the Common Law with regard to this matter. On the authority of the case from which I have made references the position must be established that apart from Sections 38 and 52 there is a right or a rule of justice to allow remission in the circumstances such as the present. The only point determined was whether the defendant being in a different position from a cosharer is entitled to exercise that right. It seems to me, on the quotation I have given that it is abundantly clear that he is so entitled as the Judge in the Court below has held. In one sense the rent so-called was u/s 22 for compensation for use and occupation of the land belonging both to the defendant and to the plaintiffs; and if it can be shown that that land cannot be used and cannot be cultivated, it seems necessarily to follow that remission may be claimed. In my judgment the decision of the learned Judge in the Court below was right and the appeal must be dismissed with costs. Leave to appeal under the Letters Patent is refused.