1. This appeal arises out of a suit for rent under the following circumstances.
2. The predecessor-in-interest of the plaintiffs created a permanent tenure at a jama of Rs. 5,452 in favour of the predecessors-in-title of the defendants in the year 1860. The tenure comprised lands within the permanently settled Zemindari of the plaintiffs as well as some lands which formed the subject of diluvion and reformation. There was a provision in the patta that if any chur or any alluviated or taufir land was separately settled after 'becoming Government khas,' the talukdar shall not get any reduction of the jama mentioned in the kabuliyat. It was expressly stipulated in the kabuliyat that the rent was never to be increased or decreased.
3. It appears that some of the lands were resumed by Government and afterwards settled with the plaintiffs in 1900 as dearah lands. The Government revenue was separately fixed for the lands and the rent payable by the tenants was also fixed. In 1914, there was a fresh Settlement by Government and the Settlement Authorities assessed higher revenue by the plaintiffs and higher rent payable by the tenure-holders under the plaintiffs. The plaintiffs have brought this suit for recovery of the rent fixed in the Settlement proceedings. The defence was that the plaintiffs were not entitled to any additional rent over and above the rent payable under the kabuliyat of 1860.
4. The Court of first instance gave a decree at the rate settled by the Revenue Authorities, but that decree was reversed by the lower Appellate Court and the plaintiffs have appealed to this Court.
5. The kabuliyat no doubt expressly provides that the tenants shall not be entitled to any reduction of rent in the event of any land being resumed by Government and settled. The question is whether such stipulation necessarily shows that if the lands are settled again with the plaintiffs, the Zimindars, the tenant would not be entitled to hold those lands as part of the taluk at the same rent under the original kabuliyat.
6. If the intention of the parties to the contract was that the lease should comprise all the lands within it and the rent was settled at a lump sum for all the lands leased out, we do not think that it can be said that the tenants would have no right to the lands even if they were settled with the Zamindar after resumption by Government. Upon a construction of the terms of the kabuliyat, we are disposed to agree with the construction put upon it by the lower Appellate Court.
7. The learned Pleader for the appellant, however, has contended that apart from the question of construction of the kabuliyat, the tenant is bound to pay the rent fixed by the Revenue Officer under the provisions of Section 192 and Section 104J of the Bengal Tenancy Act. It is urged that the Settlement proceedings under the Bengal Tenancy Act supersede the contract between the parties.
8. This question has been raised in some cases. In the case of Pria Nath Das v. Ramtaran Chatterjee 30 C. 811 : 7 C.W.N. 601 : 8 Sar. P.C.J. 497 : 30 I.A. 159 (P.C.) the Judicial Committee considered the effect of Settlement proceedings upon a contract between the landlord and the tenant. Their Lordships observe: 'The Settlement proceedings of 1884 cannot be held to have abrogated the rights of that respondent under the patta, so long as Raja Baroda Kant Roy and his heirs were themselves in a position to 1st him have the lands, in fast, the resumption by Government did not disturb the possession either of the Raja's heirs or of Chatterji. The mere fact of resumption cannot be held to have brought to an end the rights of the respondent... under the patta, for the patta itself recognises the precarious nature of the grantor's title, and provides against the loss of possession should that be the result.... If it had seemed good to the Government to take the land into their own khas possession or to settle it on strangers to the contrast with the respondent Chatterji, then the recorded rent would have been the rate of payment by that respondent. But the lands having been settled on the heirs of the Raja who granted the patta, the Act does not interfere with the contractual rights of the subordinate holder. Now the period of Settlement being still current, the ganti right still subsists, and the respondent is only liable for the rent payable under the patta.'
9. In the case of Muktakeshi Dasi v. Srinath Das 26 Ind. Cas. 215: 19 C.L.J. 614 the same principle was laid down, following the observation of the Judicial Committee in Pria Nath Das v. Ramtaran Chatterjee 30 C. 811 : 7 C.W.N. 601 : 8 Sar. P.C.J. 497 : 30 I.A. 159 (P.C.). The Settlement proceedings, however, were not taken under Chapter X of the Bengal Tenancy Act either in that case or in the case of Muktakeshi Dasi v. Srinath Das 26 Ind Cas. 215: 19 C.L.J. 614. So the question what effect Sections 192 and 104J have upon a contract between the parties was not considered in those cases.
10. The learned Pleader for the appellant, as already stated, has relied upon the provisions of Section 192 of the Bengal Tenancy Act. That section says: 'When a landlord grants a lease or makes any other contract, purporting to entitle the tenant of land not included in an area permanently settled to hold that land free of rent or at a particular rent, and while the lease or contract is in force:
(a) land revenue is for the first time made payable in respect of the land, or
(b) land revenue having been previously payable in respect of it, a fresh settlement of land revenue is made,
11. a Revenue Officer may, notwithstanding anything in the contract between the parties, by order, on the application of the landlord or of the tenant, fix a fair and equitable rent for the land in accordance with the provisions of this Act.'
12. The question, however, arises whether the 'lease or contract' referred to in the section would include a lease or contract executed before the passing of the Bengal Tenancy Act.
13. It is contended on behalf of the appellant that that question is not very material, provided the lease or contract is in force when the land revenue is for the first time made payable in respect of the land, or a fresh settlement of land revenue is made. We think, however, that the words 'lease or contract' have reference to the words 'lease' or 'contract' in the opening lines of the section and it was not intended to affect contracts entered into before the passing of the Act. Section 178 provides for contracts between the landlord and the tenant made before or after the passing of the Act. Of course that section expressly gives retrospective effect; there may be such an operation by implication also. But we do not think that Section 192, either expressly or impliedly, gives power to a Revenue Officer to fix a rent so as to affect contrasts entered into before the parsing of the Bengal Tenancy Act.
14. The question, how far the provisions of Section 104J would affect such contracts, is not free from difficulty. That section says: 'Subject to the provisions of Section 104H, all rents settled under Sections 104A to 104F and entered in a Record of Rights finally published under Section 103A, or settled under Section 104G, shall be deemed to have been correctly settled and to be fair and equitable rents within the meaning of this Act.'
15. It has been held in two cases, viz., Baikuntha Nath Ghose v. Sodananda Prasanna Kumar Mohapatra 46 Ind. Cas. 287, 23 C.W.N. 516 and Prafulla Narain v. Polku Mohammad 58 Ind. Cas. 122 : 23 C.W.N. 860, that the entry raises an irrebuttable presumption. So far as the settlement of the rent is concerned, the tenant cannot question the rents settled by the Settlement Authorities under the provision of Chapter X in cases where the settlement of land revenue is made or is about to be made. But the learned Judges in the case of Baikuntha Nath Ghose v. Sodananda (Prasanna Kumar) Mohapatra 46 Ind. Cas. 287, 23 C.W.N. 516 were of opinion that the conclusiveness attached not only to the question of rent settled but it also attached to other matters recorded by the Settlement Officer.
16. In the case of Ambica Charan v. Joy Chandra Ghosh 4 Ind. Cas. 470 : 13 C.W.N. 2'0 Stephen and Doss, JJ., although of opinion that the entry as to rent is conclusive, pointed out the distinction between session 103B and 104J thus: 'Section 103B makes the Record of Rights conclusive and makes it correct until the contrary is proved. It does not, however, apply to the rent roll which is the subject-matter of the next part of Chapter X. Section 104J applies to the rent roll alone and to no other part of the Record of Rights and Section 104J enacts that the settlement of rents contained in the rent roll shall be deemed to be conclusive and the rents fair and equitable, no provision being made for the admission of any evidence to the contrary. The two sections, therefore, 103B and 104J refer to different subject-matters and, therefore, the earlier can have no application on the effect of the latter.'
17. If, as pointed out by the learned Judges, Section 104J does not affect other entries in the Record of Rights except as to the rant settled, we do not think that the contention of the learned Pleader for the appellant, namely, that the defendants are bound by the provisions of Section 104J, is correct. But as stated above a different view was taken in Baikuntha Nath Ghose v. Sodananda [Prasanna Kumar] Mohapatra 46 Ind. Cas. 287, 23 C.W.N. 516.
18. The present case, however, may be distinguished on the ground, namely, that there was a kabuliyat executed in the present case before the Bengal Tenancy Act came into force, whereas there was no such contract in either of the two cases in 23 Calcutta Weekly Notes [Baikuntha Nath Ghose v. Sodananda [Prasanna Kumar] Mohapatra 46 Ind. Cas. 287, 23 C.W.N. 516, Prafulla Narain v. Palku Mohammad 58 Ind. Cas. 122 : 23 C.W.N. 860. The same observations apply to the case of Second Appeal No. 2517 of 1917 decided by Teunon and Chaudhury, JJ., reported in 60 Indian Cases 391 [Kumar Arun Chandra Sinha Bahadur v. Jogendra Lal Roy 60 Ind. CAS. 391 ]. In these circumstances, we are not inclined to interfere with the decision of the lower Court in so far as the lands are included within the kabuliyat.
19. It is contended on behalf of the appellant that the lands in the possession of the defendant in respect of which there was a settlement by Government with the Zemindar and in respect of which rent has been claimed in the present suit include not only lands covered by the kabuliyat but also lands outside the kabuliyat. This is denied on behalf of the respondent.
20. It appears, however, from paragraph No. 6 of the written statement of the defendants that, at any rate, there was a Question as to some lands having been held by the defendants outside the kabuliyat. Paragraph No. 6 runs as follow: 'An allegation has been made to the effect that 39-95 acres of land of the defendant's taluk have been included in the dearah. This defendant has learnt from the plaintiffs' side that out of the same, 9-37 acres of land are within the boundary line of lands of taluk which had been ascertained in the suit of the year 1876 and the remaining 30-58 acres of land lie outside the said boundary line. Even if that be correct, the plaintiffs can get no separate rent from the taluk in a separate manner save and except that an only 30-58 acres of land.'
21. There was no issue raised on the point but the learned Munsif says: 'After the resumption of a part of the kabuliyat lands and other land, the Government created a separate estate in respect of the same and settled periodically with the plaintiffs.'
22. The question does not appear to have been gong into by the lower Appellate Court. But from what we have said, it will appear that there was a question as to some of the lands outside the kabuliyat having been settled with the plaintiffs and being in the possession of the defendants. We are unable to decide that matter here and accordingly direct that the case be sent back to the lower Appellate Court in order that the question may be enquired into. If the Court finds that any portion of the lands settled by Government with the plaintiffs is in the possession of the defendants and which is not covered by the kabuliyat and which falls outside the decree in the suit of 1876 between the parties, the Court will apportion the rent which has been settled by the Revenue Authorities in respect of such lands as between the lands included in, and those falling outside the taluk. In that event, the Court will consider the question of costs. If, however, the Court finds that all the lands in possession of the defendants for which rent is claimed in the suit were included in the kabuliyat and found to be within the taluk by toe decree of 1876, the plaintiffs' suit would be wholly dismissed and with costs of all Courts: and if the whole of the lands falls outside the kabuliyat, the suit will have to be decreed and with costs in all Courts.