Bennet, J.@mdashThis is a second appeal by a plaintiff whose suit has been dismissed by the lower appellate Court. The plaintiff sued in the Court
of an Assistant Col. lector, First Class, for a declaration u/s 123, Agra Tenancy Act, that the defendants were liable to pay the sum of Rs. 273-9-1
annually for their holding as fixed-rate tenants. The plaintiff is the zamindar of the village. The plaintiff had brought a suit for arrears of rent at this
rate and only Rs. 270-13-0 have been decreed on the ground that Rs. 2-12.2 was cess payable under the Benaras Family Domains Act, Act 3 of
1904. The word used in that Act is ""rate"" and the Act provides that the Maharaja of Benares should receive a certain rate from land and that rate
should be paid by the tenants to inferior proprietors who could recover it as arrears of rent from the tenants and that the inferior proprietors should
pay to the Maharaja u/s 6, Part 2, Act 3 of 1904. The Court below has come to the conclusion that the declaration should not be granted u/s 123,
because that section only deals with rent and does not include what the Court is pleased to call ""cess"". But even on this view it appears to me that
the Court is wrong because Section 123(f) states that the suit may be for declaration of ""any other condition of the nature required to be specified
u/s 55(d), U.P. Land Revenue Act, 1901."" The sub-section states that one of the matters to be specified in the register is ""any other condition of
the tenure."" Now the case for the plaintiff is that it is a condition of the tenure of the defendants that they should make this payment of Rs. 2 odd
per annum. Clearly therefore this is a matter which may form the subject of a suit u/s 123, Tenancy Act. Respondent argued that the decision in the
rent suit might operate as res judicata. That suit was tried by a tahsildar, an Assistant Collector, Class 2, and the present suit is only triable by an
Assistant Collector, Class 1, so Section 11, Civil P.C., will not apply. For these reasons I allow this second appeal with costs, and decree the suit
of the plaintiff with costs throughout. Permission is not given for a Letters Patent appeal.