Judgment 1. These appeals arise out of three rent suits filed by the same landlords, but against two sets of tenants belonging to the same family. First Appeal 680 arises out of Rent Suit No. 13/4 of 1951/ 55, relating to Khata Nos. 93, 77, 75, 69, 63, 58 and 38 for the years 1357 and 1358 Fasli. First Appeal 685 arises out of Rent Suit No. 11/3 of 1951/55 and is in regard to Khata No. 67 for the years 1357 and 1358 Fasli. First Appeal 689 of 1958 arises out of Rent Suit No. 52/2 of 1958/58, and is in relation to khata No. 67 for the years 1354 and 1355 Fasli. Out of that Rent Suit another First Appeal (F. A. 140 of 1950) had come to this Court and was disposed of on the 17th December, 1957, remanding the case to the court below. 2. In all these Rent Suits, the plaintiffs claimed produce rent from the defendants-tenants, who, however, urged that they were only liable to cash rent, because, in respect of their holdings there had already been commutation to cash rent under Sec. 40 of the Bihar Tenancy Act. Another defence raised by them was that the original holding had been split up on account of a division in the joint family and each of the three branches of the joint family had applied under Sec. 40 of the Bihar Tenancy Act for commutation of the produce rent to cash rent, which was allowed and the corresponding rent schedules had been prepared. 3. The trial Court did not accept this defence on the ground that it was not satisfied that the defendants had proved that there had actually been splitting up of the holdings concerned and as such the order commuting the produce rent to cash rent Was ineffective and without jurisdiction. Produce rent was decreed against the defendants and against that the present appeals were filed by them. 4. It should be mentioned here that in First Appeal No. 689 of 1958 (arising out of Rent Suit No. 2 of 1958) it was conceded by the learned Counsel appearing for the tenant -- appellants that the rent schedules which had been prepared under Section 40 of the Bihar Tenancy Act, will not cover the period for which that Rent Suit was laid by the landlords, namely, 1354 and 1355 Fasli. The only point urged by him against the decree in relation to that suit was that the amount of produce rent determined by the court below is not supportable by the materials on record. The trial court did not go by the oral evidence, in this respect. On looking to the evidence, as adduced on the plaintiffs side, we find that there was no substantial proof as to the actual amount of produce yielded by the land concerned. The trial court, however, went by the certified copy of the judgment in the Rent Suit for the year 1353 and 1354 Fasli (Exhibit 3/B) in respect of another khata (khata No. 75) of Rashulpur and a certified copy of a Rent Decree for 1353 and 1354 Fasli years (Ext. F/l) in respect of khata No. 38 in the same village. Since those two khatas were also invoked in one of the Rent Suits (Rent Suit No. 4 of 1955), the court below thought that the amount of annual produce determined in those two cases should afford a good guide line for determining the amount in the present case. Under Exhibit 3/B, 12 maunds of paddy, 4 maunds of Sarso (mustard), 2 maunds of Khesari 5 maunds of Masuri and 5 maunds of Kerao was determined as the produce per bigha. Under Exhibit F/l, the corresponding amounts were 5 maunds of paddy, 2 maunds of Khesari and 10 seers of Sarso (mustard) as annual produce per bigha of the lands involved in that case. The trial court did not go by either of the two standards, but fixed the annual produce at 10 maunds of paddy, 4 maunds of Khesari, 4 maunds of Masuri and 3 maunds of Sarso per bigha. Learned counsels contention was that these amounts of produce were fixed in an arbitrary manner, Neither there was an appraisement of the crop at the time the crops were standing in those years in the field in a regular manner, nor there was any reliable evidence about the actual produce yielded by the lands during those two years. In absence of both, according to learned Counsel, the court should have accepted what the defendants admitted to have produced from that land. To support his contention he relied upon the case of Pratap Narain Jha V/s. Ramasray Per-shad Chaudhary, ILR 17 Pat 120 (FB). 5. In absence of both, according to learned Counsel, the court should have accepted what the defendants admitted to have produced from that land. To support his contention he relied upon the case of Pratap Narain Jha V/s. Ramasray Per-shad Chaudhary, ILR 17 Pat 120 (FB). 5. We do not think that the case reported in ILR 17 Pat 120 has got any application here. There the suit was for produce rent and the trial court decreed on the evidence adduced on the defendants side about the produce from that land. In Appeal, that was set at naught and the yield as determined in the appraisement was taken to be the basis of produce rent. When the case cams in Second Appeal, it was held by this Court that if an appraisement is not held after observing all the prescribed formalities, that should not be taken as the basis of produce rent. In that view, the Court accepted the produce rent in that case on the evidence given on the defendants side. Here, in the Instant case, the position is different. The court has not gone by the appraisement, as spoken to by P, W. 2, the Naib Patwari of the landlords. Learned Counsel, however, urged that the same principles of appraisement should govern a case of the present nature and, if such evidence is not forthcoming then the only course open to the court was to rely upon the evidence on the defendants side about the actual produce from the land. We are afraid, this is not sound. In a case of this kind, what the court has to see is, what was the produce yielded by the land and how much of that will come to the landlords by way of produce rent. This should have been done either by division of the crops or by appraisement or in absence of either, by evidence as to the actual produce of the land. Attempts were made in this direction from both the sides. But to the trial court, the oral evidence did not appear to be satisfactory and we are in agreement with that appraisal. The two documents on which the court below relied (Exhibits 3/B and F/l) do not support the amount of produce determined by it. Attempts were made in this direction from both the sides. But to the trial court, the oral evidence did not appear to be satisfactory and we are in agreement with that appraisal. The two documents on which the court below relied (Exhibits 3/B and F/l) do not support the amount of produce determined by it. On the other hand, one judgment and one decree in two other previous Rent Suit, now admitted as additional evidence on the defendants side, disclose that during the relevant years, 1354 and 1355 Fasli, the yield of paddy from similar lands was 5 maunds per bigha. That is also in accord with Exhibit F/l, on which the trial court also has relied. In that view, the produce rent to which the plaintiff-respondents would be entitled for 1354 and 1355 Fasli for Khata No. 67 in Rent Suit No. 2 of 1958 should be on the basis of five maunds of paddy, two maunds of Khesari, two maunds of Masuri and ten seers of Sarso per bigha. This will be taken to be the annual yield from the land and the plaintiff-landlords will be entitled to their legitimate share out of that (in the proportion of nine-twentieths under Sec.178B of the Bihar Tenancy Act). The price of the landlords share in the produce will be determined according to the prevailing sale price of these commodities in those relevant years, as given in the Bihar Gazette. In case the sale price of any of these commodities is not available from the Bihar Gazette of that year, the sale rate given in the plaint will be accepted. This disposes of the First Appeal No. 689 of 1958, which is allowed in part. The decree of the court below will be modified in the manner indicated above. In the circumstances of the case, there will be no order for costs in this Court. 6. In the other two appeals, learned Counsels contention was that the court below should have accepted the rent schedules as determined under Sec. 40 of the Bihar Tenancy Act. There was evidence on the defendants side that there had been a division of the holdings between the three branches of the family. The fact that the three branches made separate applications for commutation of produce rent to cash rent is corroborative of that assertion. There was evidence on the defendants side that there had been a division of the holdings between the three branches of the family. The fact that the three branches made separate applications for commutation of produce rent to cash rent is corroborative of that assertion. Even if the evidence of actual division of the holding was not sufficient, yet the rent schedules finally determined in appropriate proceeding under Sec. 40 of the Bihar Tenancy Act could not be said to be without jurisdiction. Sec. 40 of the Bihar Tenancy Act lays down that where an occupancy-raiyat pays for his holding rent in kind or at rates varying with the crop, either the raiyat or his landlord may apply to have the rent commuted to money-rent. Holding has been defined under Sec.3, Clause (9) of the Act, meaning a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. When three different applications were made by three different raiyats, claiming commutation to money-rent in respect of three parcels of lands, situate in one khata, that would be in conformity with the provisions laid down in Section 40. Since 1937 amendment to the Bihar Tenancy Act, under Sec.25A, when an occupancy holding i3 partitioned either by an order of a court or otherwise, the division of the said holding shall be binding on the landlord. When all the three branches of the family contended without any dispute that the khata 67 had been divided between them, there was nothing for the landlords to object to that and that division would be binding upon the landlords. In that view of the matter, applications for commutation to money rent under Sec. 40 of the Act by the three different branches should have been taken to be conclusive evidence for the division of the holding between them and the rent schedules prepared by the appropriate authorities in those proceedings were binding upon both the parties, including the landlords. It is true that when the rent schedules were originally prepared, the time with effect from which that would be operative had not been indicated in the final orders passed in those commutation cases. But later (Ext. K/3) those commutations were held effective with effect from 1357 Fasli year. It is true that when the rent schedules were originally prepared, the time with effect from which that would be operative had not been indicated in the final orders passed in those commutation cases. But later (Ext. K/3) those commutations were held effective with effect from 1357 Fasli year. Learned counsel for the respondents contended that since this determination of the time from which the commutation will take effect was made on the 28th August, 1952, that would not affect the present rent suits, which had been instituted earlier on the 26th September, 1951. There does not appear to be any substance in this contention. When a commutation is made and the time with effect from which it will operate is determined, it will relate back to the year when the application for such commutation was made. Therefore, if the rent schedules in respect of the land in question were valid, they must take effect from the year 1357 Fasli. In other words, the landlords can only be entitled to money rent at those rates and not to produce rent since then. 7. We do not consider it necessary to refer to the several rent receipts filed on the side of the defendants in detail. It will be enough to say that many of them show that rent was being paid by the three different branches of the family separately and rent receipts used to be granted to them accordingly. Learned Counsel, by way of illustration, pointed out to Exhibits A/32 and A/33, for the year 1351 Fasli, given to Tuki Singh and Mohan Singh, separately. Exhibits A/71 and A/72 were also given separately to Mohan Singh. Similarly Exhibits A/9, A/10 and A/11 for the year 1354 Fasli indicate separate payments of rent by the three branches. Exhibits A/41, A/42, A/64, A/65, in respect of different years were also pointed out by the learned Counsel in this connection. He also urged that on the defendants side there was sufficient oral evidence in support of their claim of division of the holdings between themselves. Since we have taken the view that apart from the evidence which cannot be overlooked, the fact that the three branches made separate applications under Sec. 40 of the Bihar Tenancy Act was proof of the splitting up of the holdings, and therefore, the commutation to money rent was binding upon the landlords. 8. Since we have taken the view that apart from the evidence which cannot be overlooked, the fact that the three branches made separate applications under Sec. 40 of the Bihar Tenancy Act was proof of the splitting up of the holdings, and therefore, the commutation to money rent was binding upon the landlords. 8. The trial court referred to Exhibit 3/D, an appellate Judgment arising out of Rent Suit No. 20 of 1949 for the years 1354 and 1355 Fasli, where it was held that the splitting up of the holding had not been established by the defendant-tenants. In its view that would operate as res judicata as far as the defendants plea in the present rent suits in regard to the division of the holding was concerned. Learned Counsels contention is that the present suit being for a subsequent period and the only ground on which the rent schedules in the former rent suit had not been acted upon being that the time with effect from which such rent schedules were to be operative had not been specified in the orders passed under Sec. 40 of the Bihar Tenancy Act, the previous appellate judgment will not operate either directly or indirectly on principles of res judicata against the defendants. We think, there is substance in this reasoning. It is noteworthy that even in the former rent suit No. 20 of 1949 the court had said that when the time from which the rent schedules will be indicated to be effective, its effect will be considered afresh and that question was left open. The defendants might not have been able to establish their claim on the basis of the rent schedules in the previous suit as the rent schedules stood then, but there was no bar to their proving in the present suits that the rent schedules had become effective with effect from 1357 Fasli. If there was no defect in the jurisdiction of the commutation authority in regard to the proceedings under Section 40, then they would certainly be applicable to the present suits. We have already held that all those rent schedules are binding upon the landlords and their claim for rent in both these rent suits will be determined according to those rent schedules. We have already held that all those rent schedules are binding upon the landlords and their claim for rent in both these rent suits will be determined according to those rent schedules. In Rent Suit No. 4 of 1955 relating to First Appeal No. 680 of 1958, the relevant rent schedules are Exhibits D/11 and D/12, and in rent suit No. 3 of 1955. relating to First Appeal No. 685 of 1958, the lent schedules are Exhibits D/8, D/9 and D/10. 9. The result is that both these appeals are also allowed. The decree of the court below is modified as stated above. In the circumstances of the case, there will be no order as to costs.