JUDGMENT Mitter, J. - This appeal is in a suit instituted by the zemindar Upendra Kumar Roy for settlement of fair and equitable rent in respect of the lands in occupation of the Defendants. Rent has been settled at the sum of Rs. 71-8 per year. He is not satisfied with it and has so preferred this appeal. The facts are rather complicated. They have been recited in great detail in both the judgments of the lower Courts, but for purposes of deciding the question before us we do not think it necessary to recite all the facts. We would, accordingly, state the facts which in our opinion are relevant to the question raised in the appeal. Touzi No. 42 of the Noakhali Collectorate belonged in the past to four sets of proprietors, namely, the predecessors-in-interest of the Plaintiff, Upendra Kumar Roy, the Ghoses, Sachindra Kumar Roy and others and Fatema Khatun. Their shares respectively were 4 as., 6 as., 4 as and 2 as. This was the position before the partition of the estate under the provision of the Estates Partition Act. The partition under the Estates Partition Act became effective on the 1st January, 1928, and the 16 annas of the lands in suit was allotted to the Saham of Upendra Kumar Roy, his other co-sharers, namely, the Ghoses, Sachindra Kumar Roy and others and the purchasers of Fatema Khatun's interest being allotted other lands of the parent touzi. The effect of the allotment so made to the Plaintiff Upendra Kumar Roy at the partition under the provision of the Estates Partition Act which became effective, as we have already said, on the 1st January, 1928, is one of the important questions in this appeal. Before the said partition, the predecessor-in-interest of Upendra Kumar Roy, who had 4 annas undivided share in respect of the land in suit, granted a tenancy to the predecessor-in-interest of the Defendants in respect of that share. As his predecessor himself was the grantor, that tenancy would be binding on him even after the partition under the Estates Partition Act. Accordingly, the suit is not a suit for assessment of rent in respect of the said tenancy which the Plaintiff recognises as binding on him, and so is not the subject-matter, of this suit. As his predecessor himself was the grantor, that tenancy would be binding on him even after the partition under the Estates Partition Act. Accordingly, the suit is not a suit for assessment of rent in respect of the said tenancy which the Plaintiff recognises as binding on him, and so is not the subject-matter, of this suit. In the long past, certainly before 1885, the Ghoses who had undivided 6 annas share in the zemindary at the time granted raiyati settlement in respect of their said 6 annas share in the lands in suit to Ram Narayan Pandit at the rent of Rs. 24 per year and Fatema Khatun likewise granted another raiyati settlement to the same person which comprised her undivided 2 annas share in the land in suit at a rent of Rs. 8 per year. Sachindra Kumar Roy and his group who had 4 annas undivided share granted a raiyati settlement before 1885 also comprising their undivided 4 annas share in the land to one Kazimuddin Mridha at an annual rent of Rs. 17. The result of the aforesaid transactions is that in respect of the land in suit there were four tenancies, a tenancy under the Plaintiff's predecessor-in-interest which comprised an undivided 4 annas share in the land. What was the nature of the tenancy, whether it was a tenure or a raiyati holding, does not appear because that is not the subject-matter of this suit for assessment. Besides that, there were three other raiyati tenancies held under the Ghoses, Fatema Khatun and Sachindra Kumar Roy and others respectively. Each of these tenancies comprised the undivided share which the grantors had in the land in suit. Before 1885 the Ghoses purchased the last mentioned three raiyati tenancies which together comprised. 12 annas undivided share in that block of land. They then created an osat raiyati in favour of one Munshi Peada at the rent of Rs. 19 a year. Later on, the Defendants purchased this osat raiyati. Sachindra Kumar Roy and his group did not recognise the purchases made from their recorded tenant Kazimuddin Mridha. They instituted a suit for rent against their recorded tenant, obtained a decree and in execution of that decree, the Defendants purchased the holding of Kazimuddin Mridha. We need not detail here the earlier sales thereof by private treaty. This purchase was made by the Defendants in the year 1920. They instituted a suit for rent against their recorded tenant, obtained a decree and in execution of that decree, the Defendants purchased the holding of Kazimuddin Mridha. We need not detail here the earlier sales thereof by private treaty. This purchase was made by the Defendants in the year 1920. By reason of their purchases at the rent sale, the raiyati holding of Kazimuddin Mridha which bore a rental of Rs. 17 a year which comprised 4 annas undivided share in this block of land came to be owned by and still belongs to the Defendants. Defendants also acquired by purchase from the Ghoses raiyati interest in respect of 2 annas undivided share of the land which Fatema Khatun had created in favour of Ram Narayan Pandit, and the Defendants are still in possession of this raiyati interest. With regard to the raiyati interest which the Ghoses had created in respect of their 6 annas undivided share of the land in favour of Ram Narayan Pandit and which interest the Ghoses themselves purchased the position is this:--The Ghoses granted a Howla at the rent of Rs. 30 a year in respect of the said undivided 6 annas share to the Defendants. The result is that just before the partition under the Estates Partition Act, the Defendants had the following four separate tenancies in the lands in suit, vis., (i) a tenancy comprising a 4 annas undivided share in the land held under the share which the Plaintiff Upendra Kumar Roy had in the parent estate, (ii) a raiyati in respect of the 2 annas undivided share therein at a rental of Rs. 8 a year which we will call for brevity's sake raiyati Mudafat Ram Narayan Pandit, (iii) a rpyoti in respect of the 4 annas undivided share of the land at a rental of Rs. 17 a year which we will call raiyati Mudafat Kazimuddin Mridha and (iv) a Hewla under the Ghoses in respect of 6 annas undivided share in the land at a rental of Rs. 30 a year. 2. We have already stated that the entire block of land, that is to say, the 16 annas of the land which make up these four tenancies was allotted to the Plaintiff at the partition effected under the Estates Partition Act. 30 a year. 2. We have already stated that the entire block of land, that is to say, the 16 annas of the land which make up these four tenancies was allotted to the Plaintiff at the partition effected under the Estates Partition Act. The Plaintiff's case is that the tenancy which he had created as proprietor of the 4 annas undivided share in the parent estate is binding on him. But the tenancies which had been created before the said partition by his other co-sharers in the parent estate are not binding on him. He is entitled to get khas possession of the land of those tenancies, but as he does not wish to take khas possession thereof, he wants fair rent to be assessed. The subject-matter of the suit, therefore, comprises 12 annas share of the land, as the tenancies in respect of 4 annas share which the Plaintiff or his predecessor-in-interest had created as owner of the 4 annas undivided share in the parent estate is binding on him. The lower Appellate Court has found that the Defendants have the raiyati Mudafat Ram Narayan Pandit which had been created by Fatema Khatun as also the raiyati Mudafat Kazimuddin Mridha and under the provision of the Estates Partition Act, the Plaintiff cannot ignore those raiyati tenancies. They are binding on him. Therefore, he cannot have rent assessed in respect of those two tenancies but must take the existing rent of those holdings, namely, Rs. 8 and Rs. 17 a year respectively. The lower Appellate Court has also held that the Howla which was a tenure created by the Ghoses at a rental of Rs. 30 a year is not binding on the Plaintiff by reason of the provision of sec. 99 of the Estates Partition Act and the Plaintiff is entitled to have the rent of the land of that Howla, which is 6 annas share of the land in suit, settled. The learned Judge had settled this rent at Rs. 46-8. He has, accordingly, made a decree settling the rent at Rs. 71-8 which is the total of Rs. 8, the rent of the raiyati Mudafat Ram Narayan Pandit originally held under Fatema Khatun of Rs. 17, the rent of the raiyati Mudafat Kazimuddin Mridha and of this sum of Rs. The learned Judge had settled this rent at Rs. 46-8. He has, accordingly, made a decree settling the rent at Rs. 71-8 which is the total of Rs. 8, the rent of the raiyati Mudafat Ram Narayan Pandit originally held under Fatema Khatun of Rs. 17, the rent of the raiyati Mudafat Kazimuddin Mridha and of this sum of Rs. 46-8 which is the rent settled in respect of the Howla which the lower Appellate Court has held to be not binding on the Plaintiff by reason of the provision of sec. 99 of the Estates Partition Act. The Plaintiff has preferred an appeal and there is no cross-objection filed on behalf of the Defendants. 3. The first point for consideration in the appeal is whether those two raiyatis, namely, the raiyati Mudafat Ram Narayan Pandit with a rental of Rs. 8 a year and raiyati Mudafat Kazimuddin Mridha which is held at a rental of Rs. 17 a year are binding on the Plaintiff. The learned Advocate appearing on behalf of the Plaintiff-Appellant contends that under the provision of the Estates Partition Act, they are not binding on the Plaintiff but the right of the tenant Defendant in respect of the land comprised in those two tenancies is to get land by way of compensation from the allotment which has been made at the partition under the Estates Partition Act to the successors-in-interest of the proprietors who had created those raiyatis, that is to say, the persons on whom the title of Fatema Khatun and Sachindra Kumar Roy and his group has vested. We will have to first examine this position. The objects of the Estates Partition Act are of two-fold character. First of all, to partition by metes and bounds the estate amongst the co-sharers in accordance with their recorded shares and, secondly, to separate their liability for revenue by carving out independent estates. Two things have to be kept, and are kept in view in proceedings for partition under the Estates Partition Act: (1) that the proprietors get their allotment constituted into separate estates in accordance with the value of their shares and (2) to apportion the revenue on their allotments according to their shares. The Government is interested in this sense that the lands must be fairly distributed amongst the co-sharers in order that Government revenue may be secured. The Government is interested in this sense that the lands must be fairly distributed amongst the co-sharers in order that Government revenue may be secured. For purposes of achieving both these objects, the Estates Partition Act provides that in making a valuation of the sahams of the respective co-sharers which are to form separate revenue-paying entities, the assets, are to be calculated on the basis of rent that are being paid or would be paid by the cultivating raiyats. The partition of this estate proceeded on that basis and finding of the lower Court is that the assets in respect of these lands were taken to be Rs. 8 and Rs. 17, namely, the rent that was being paid in respect of the aforesaid two raiyati holdings and the Howla was ignored and the rent that was being paid by the cultivating raiyais in respect of the land of the Howla was taken in the computation. In these circumstances, we hold that the Plaintiff cannot ignore the two raiyatis inasmuch as the valuations of his allotment proceeded on the basis of the rents of those two raiyatis that were being paid by the Defendants. The point has been considered in some detail in a judgment of a Divi sion Bench of this Court (Letters Patent Appeal No. 6 of 1938 arising out of Second Appeal No. 1597 of 1935) unreported and one of the reasons given in support of the view that such a raiyati cannot be ignored by the proprietor to whose allotment the lands are included though that raiyati interest had been created while the estate was joint not by him but by his other co-sharers is this. There is no conflict of decision on the point as to whether a raiyati interest created by some other co-sharer while the estate was joint is binding on the other proprietor on whom lands are allotted at the partition under the Estates Partition Act where the assets were taken to be the rent that was payable by that raiyat. All the decisions hold that such a raiyati would be binding on him. There is some difference of opinion as to whether such a raiyati would be binding on him or not where the assets were not taken to be the rent payable by the raiyati. All the decisions hold that such a raiyati would be binding on him. There is some difference of opinion as to whether such a raiyati would be binding on him or not where the assets were not taken to be the rent payable by the raiyati. But we need not decide that question or proceed upon the other ground on which the Division Bench proceeded in the aforesaid Letters Appeal, for in the case before us the finding is that the rent payable by the raiyats of these two holdings were taken by the Partition Officer to be the assets of the lands. The first point urged by the Appellants is, accordingly, overruled. 4. The second point for consideration arises in this way. It relates to undivided shares of three tanks recorded in Dags Nos. 4036, 4105 and 4110. The Defendants claim that the 12 annas share of these tanks were included in the Howla and the two raiyatis, viz., Mudafat Ram Narayan Pandit under Fatema Khatun and Mudafat Kazimuddin Mridha under Sachindra Kumar Ray and others. At the trial they stated that only 6 annas undivided share of these tanks, and not 12 annas, were included in those three tenancies. The trial Court in one part of its judgment remarked that it was the Defendants' admitted case that the aforesaid 6 annas undivided share in those three tanks was held under the Howla only. That Court held that as the Howla was not binding on the Plaintiff, he could at his option get khas possession of the land of that Howla or have khas possession of such portion as he liked and get rent assessed in respect of the rest. The Plaintiff's case was that no share of these three tanks was included either in the Howla or in the aforesaid two raiyatis. Apart from this statement in the judgment of the trial Court, which is contrary to the specific case made in the written statement of the Defendants, there is no material to show that that portion of the Defendants' case made by them in their written statement had been abandoned. Apart from this statement in the judgment of the trial Court, which is contrary to the specific case made in the written statement of the Defendants, there is no material to show that that portion of the Defendants' case made by them in their written statement had been abandoned. In fact, when the matter went up to the Appeal Court, the Plaintiff did not urge that the question as to whether the share of the tank was included in the Howla only, and not in the raiyatis could not be re-opened, as the Defendant had made the aforesaid admission. In this state of the record we think that there was misconception on the part of the trial Court in making that statement. The lower Appellate Court considered this question. Before the lower Appellate Court the Plaintiff maintained his contention that no share of these tanks was included in any one of those three tenancies, and for that purpose he contended that the entry in the record-of-rights which recorded 6 annas share of the tank as within the Howla and the two raiyatis was a wrong entry. The Additional District Judge found that it was not a wrong entry. In one part of his judgment he stated the question in the following form, vis., whether any share of the tank was included in the Howla or raiyati. 5. Then he considered the case of the Plaintiff and came to the conclusion that the entry in the record-of-rights had not been proved to be incorrect in that respect. Then in one sentence he stated that under the facts and circumstances of the case, 6 annas share of the tank which is recorded as within the tenancies--the Howla and the raiyatis--appertained exclusively to the raiyatis and not under the Howla 6. And so the Plaintiff was not entitled to assess any rent in respect of the 6 annas undivided share of those three tanks. We do not think that the lower Appellate Court did seriously apply its mind to the matter as to whether any part or share of the tanks was in the Howla. And so the Plaintiff was not entitled to assess any rent in respect of the 6 annas undivided share of those three tanks. We do not think that the lower Appellate Court did seriously apply its mind to the matter as to whether any part or share of the tanks was in the Howla. Moreover it appears to us that its findings in this respect are inconsistent, for if the entries in the record-of-rights be correct entries, as is the finding in one part of the judgment, 6 annas undivided share in those tanks would be included both within the Howla and the two raiyatis, and that Khatian itself shows that taking the land to be 16 annas, the raiyatis were in respect of 10 annas and the Howla in respect of 6 annas. In that proportion 2-3 p. share in the tank would be in the Howla and the remaining 2-9 p. share would be in the raiyatis. In that case the Plaintiff would be entitled either to get khas possession of 2-3 p. share of the three tanks or to have rent assessed in respect of those shares but the learned Judge in the Court of Appeal below has not given him either of these reliefs. We do not know what other evidence bearing on this point is on the record. Whatever observations we have made above in respect of these tanks have been made by us only for purposes of pointing out the defects in the judgment of the lower Appellate Court. The decision of the lower Appellate Court that 6 annas undivided share in the tanks is tenanted must be taken to be final between the parties, but the question must be determined by the lower Appellate Court on the evidence on the record as to whether the aforesaid 6 annas undivided share is either entirely within the Howla or entirely within the two raiyatis or partly within the Howla or partly within the two raiyaiis. If it comes to the conclusion that that share is included in the raiyatis and no part of it in the Howla, the decree passed will stand. If, however, it comes to the conclusion that the share is entirely within the Howla, it would give option to the Plaintiff either to take khas possession thereof or to have the rent assessed thereupon. If, however, it comes to the conclusion that the share is entirely within the Howla, it would give option to the Plaintiff either to take khas possession thereof or to have the rent assessed thereupon. Whatever rent would be assessed thereupon would be added to the sum of Rs. 71-8. The finding that the fair rent would be Rs. 71-8 must be taken to be final between the parties apart from the question about the tank which we are remanding. If it comes to the conclusion, that the tanks are included partly within the raiyatis and partly within the Howla, no rent would be assessed on the share of the tank which would be found to be within the raiyatis, but the Plaintiff would be entitled either to have khas possession of the share which would be found to be within the Howla or assessment of rent in respect thereto. If he wishes to have the rent assessed, the lower Appellate Court would assess the rent of that share and have it added to the figure Rs. 71-8. The parties Would be at liberty to adduce additional evidence if they so desire but only for purposes of enabling the Court to fix the amount of the rent that may have to be assessed on the share of the tank which may be found to be assessable. 7. The result is that the appeal is allowed, the decree of the lower Appellate Court sec aside and the case remanded to that Court to be dealt with in accordance with the direction indicated above. The Plaintiff Appellant will have the costs of this appeal. Ahmad, J. I agree.