1. This is an appeal by the defendant and arises out of a suit commenced by the plaintiffs under Section 104-H, Ban. Ten. Act, for the correction of an entry in the Record of Rights relating to their status, on the ground that the plaintiffs belonged to a class different from that to which they are shown in the Record of Eights as belonging. In other words, plaintiffs contend that they are occupancy raiyats in respect of the holding, but at the last settlement operations, which were taken up in the year 1328 B. S., the interest of the plaintiffs has been wrongly recorded as that of tenure-holders and that the rent settled was illegal. The first Court dismissed the suit on 8th September 1926.
2. An appeal was taken to the Court of the Subordinate Judge of Nadiya and was disposed of on 11th June 1928. During the pendency of that suit, two of the tenants, who are plaintiffs 5 and 8, viz. Jatindrakumar Shaha and Radhaballav Shaha, died on 28th December 1927 and 16th July 1927, respectively. The learned Subordinate Judge reversed the decision of the first Court, holding that the record with regard to the status of the plaintiffs must be corrected, and remitted the suit to the first Court for settlement of fair and equitable rent in respect of the suit lands on the basis that plaintiffs are occupancy raiyats therein.
3. Against this decision the present appeal has been preferred and it is contended that, so far as plaintiffs 5 and 8 are concerned, the appeal before the lower appellate Court has abater, as the heirs of the deceased plaintiffs did not apply for being substituted on the record of the appeal within the time allowed by law. It is Said the effect of the abatement of the appeal against the legal representatives of plaintiffs 5 and 8 is that the whole appeal before the lower appellate Court had abated, and that the Subordinate Judge should have dismissed the plaintiffs' appeal on that ground. Reliance has been placed in this connection on a decision of this Court in the case of Naimuddin Biswas v. Manirad-din Laskar : AIR1928Cal184 in which my learned brothers Cuming and Mallik, JJ., held that as the appeal has abated in respect of one of several appellants and the right to appeal does not survive to the remaining appellants alone, the whole appeal becomes incompetent. That was a case in which the tenants had brought a suit under Section 106, Ben. Ten. Act, for the correction of an entry of rent in the Record of Rights. That was dismissed by the Settlement Officer, but on appeal to the Special Judge it was decreed. During the pendency of the appeal to the High Court by the landlords, one of them died and his legal representatives were not brought on the record. It was held in those circumstances that the appeal in respect of the deceased landlord abated and, in view of the nature of the suit, the whole appeal had abated. That ease is obviously distinguishable, as there the, abatement was in respect of the death of one of the defendants landlords. In the present case, the matter has to be considered from this point of view, viz., whether it was not open to one of the tenants-plaintiffs to institute a suit under Section 104-H, Clause (3)(e) Ben. Ten. Act for the purpose of getting a declaration that ha was an occupancy raiyats and that the entry in the Record of Eights on the basis that he was a tenure holder was wrong. She language of Section 104-H, in so far as it is material to refer to for the purpose of the present appeal, is as follows: 'Any person aggrieved by an entry of a rent settled in a settlement rent roll . . , may institute a suit in the civil Court ...'
4. One of the plaintiffs-tenants would be |a person aggrieved by an entry of rant, land it would be open to him to ask for the correction of the entry in the Record 'of Bights on the ground that the status of himself and his cosharers in the particular holding was that of occupancy tenants. In these circumstances, having regard to the provisions of Order 41, Rule 4, Civil P.C., and, haying regard to the language of Section 104-H, Ben. Ten. Act, it was competent to one of the tenants to institute a suit of the kind, which is now the subject-matter of the appeal. It appears farther that, after the remand, the abatement has, as a matter of fact, been set aside by the Munsif. There does not seem therefore to be much merit in this contention of the appellant.
5. The appeal therefore fails and is dismissed with costs one gold mohur.
6. Leave to appeal under Section 15, Letters Patent, has been asked for in this case by the appellant. But I do not think that this is a fit case in which leave should be granted.