1. This is a little second appeal which is brought by one of the defendants. If I understand the matter rightly the defendants were the owners or zamindars in respect of the plots among others with which we are concerned in this suit. In 1916 they executed a usufructuary mortgage over these lands in favour of the plaintiffs. On the following day the defendants agreed to take a lease of the particular parcels of land with which we are dealing at a rent of Rs. 186-12-0 per annum. In pursuance of that agreement they paid that rent from 1916 to 1931. In January of 1931 the defendants sold the property to the plaintiffs, the mortgagees, and thereby the defendants became ex-proprietary tenants and on 3rd March 1932 the defendants made an application to the Collector under Section 36, Land Revenue Act, to have a rent fixed in respect of the property in which their ex-proprietary right had been created. It is common ground that before the Collector made his order fixing the rent an agreement had been arrived at between the plaintiffs and the defendants as to the figure which the defendants should pay. They agreed to pay Rs. 125 a year. And the Collector, on learning that passed a decree in the terms of the compromise. It was an untidy order saying merely:
It is therefore ordered that the compromise may be acted upon and information sent to the tahsil and acted upon accordingly.
2. The plaintiffs ultimately applied by this suit which they began in 1935 for payment of the rent so fixed by the order of the Collector and the defendants raised the defence with which I am now concerned. What the defendants say is that according to Section 8, Agra Tenancy Act, no agreement between the parties could have operated to restrict any right conferred on them or secured to them by that Act, that is to say the Agra Tenancy Act. And they go on to argue that therefore their right under Section 14. of the same Act to have a rent fixed of two annas in the rupee less than the rent prescribed for occupancy tenants in Section 59 cannot have been affected by any agreement come to. They then go a step further by saying that the Collector had no jurisdiction to make this order and, accordingly, the present plaintiffs cannot sue for the rent which was thereby purported to be fixed. That, as I understand it, is the reasoning they adopt. The learned Assistant Collector did not, I think, deal with the matter at any length but the learned District Judge of Ghazipur in a reasoned judgment came to the conclusion that, whatever might have been said about the agreement itself, it was not possible in these proceedings to challenge the decree which had been passed by the Collector.
3. In my view the decision of the District Judge was right. It may well be-indeed I think it must be-that the defendants had a statutory right, which they themselves were incapable of prejudicing by their own agreement, of having a rent fixed by the Collector under Section 36, Land Revenue Act, upon the scale defined by Section 14, Agra Tenancy Act. I should not for a moment dispute that and it may possibly be that the Collector in passing his order of 4th March 1932 erred in basing it upon the agreement of the parties. The difficulty with which I am faced is that there is in fact an order of the Collector which order was made by him in his capacity of presiding over a Revenue Court and was itself appealable or subject to a correction in revision. It seems to me that upon ordinary principles which are well known, a decree based upon a compromise has the effect of merging the compromise in the decree. All that is left is the decree. That is clear from the provisions of the Civil Procedure Code itself which by Order 23, Rule 3 provides that the Court shall record the compromise but pass a decree in accordance with it. And, as it seems to me, the future rights of the parties are governed not by the compromise but by the decree. The position therefore is that I find myself faced with a decree by the Collector. I have no jurisdiction, I think, to reverse that decree in this appeal and I must, in my judgment, accept it as the document which at present governs the rights of the parties. It may be-I do not say that it necessarily is so-that in some other proceedings of a revisional character it is capable of being set aside or modified. But so long as it exists in its present form it does not seem to me that I am entitled to go behind it.
4. My attention has been drawn to a case reported in this Court in Suchit Chaube v. Baldeo Raj : AIR1938All74 in which my learned brother Bennet J. took an opposite view. I think that this may be true. But there is an earlier decision of two Judges of this Court which is reported in Har Prasad v. Khazan (1920) 7 AIR All 143 in which two Judges took a view which is I think precisely the view I myself have taken. They say:
The next point is that there is an order by the Assistant Collector under Section 36, Land Revenue Act, which fixed the rent and that that order having become final by reason of no appeal having been preferred, is binding on the parties and the Court cannot go behind it.
5. I am not myself prepared to assume that the attention of the Court was not drawn to Section 8, Agra Tenancy Act and I think that this decision is one which, notwithstanding what has been said about it in the former case to which I have referred, is still binding upon me. I have no reason to suppose that there is any material injustice in the case as there is no evidence that the rent that actually was fixed by the Collector was in excess of the rent the defendants would have been bound to pay under Section 14, Agra Tenancy Act. For these reasons I think this appeal must be dismissed with costs. I have been asked for leave to appeal under the Letters Patent. This is not a case in which I should be justified in giving it. On a representation by the advocate of the appellant that at the hearing of this second appeal he was unable, owing to illness, to do justice to the appeal, I had it put back in my list for further argument. He then pointed out that there was, in fact, evidence on the record which shows that the rent actually fixed by the Collector was in excess of the proper rent. This may be so. But it does not affect the basis of my decision. I have therefore no reason to amend the judgment before signing it.