Tustick Wilson and Tottenham, JJ.
1. In this case the first thing that is important is to ascertain, as accurately as we can, what the facts as found by the Lower Appellate Court are to which we have to apply the law. The suit is brought by an izarahdar to recover rent from tenants at an enhanced rate. The case made is that the property on which the tenants hold is a Khas Mahal of Government; that the plaintiff and another formerly held an izarah of the Mehal; that then it fell into the Khas possession of Government, and that in about the year 1876 a fresh settlement was made under which the rent of these tenants was enhanced; that subsequently the plaintiff and another again took an izarah, and the plaintiff alleges his title to sue for and recover rents from the tenants at the enhanced rate.
2. The District Judge, before whom the case came on appeal, says this:
The Deputy Collector, Baboo T.C. Mitter, who made the re-settlement on behalf of Government, raised the jummas to 'so and so.' The jummabundi was in due course approved by the Board of Revenue, but it is not clear whether the settlement was before or after Bengal Act VIII of 1879 came into force. I shall, for the purposes of this appeal, assume that the settlement was made under Regulation VII of 1822.' Then he describes the present appearance of the jummabundi, and he goes on: 'Now, no doubt, if it were necessary in case of a re-settlement of a Khas Mehal to prove that the tenants assented to pay any enhanced rent assessed on them, or it were necessary to prove that a notice, calling on each tenant to attend at the settlement, must be proved to have been served on each individual tenant, it would be exceedingly difficult in the present case to say that the defendant was bound by the settlement. I am not aware, however, of anything either in the Regulation VII of 1822 or in the Bengal Act VIII of 1879, or the present Tenancy Act, which either requires the ryot's assent to the jumma imposed, or makes it necessary to prove that a special notice was served on any individual tenant.
3. Now, we think, the intention of the District Judge must have been to find this: that if it were necessary, under the circumstances of the case, in order to comply with the law, as it existed before Bengal Act VIII of 1879, or the earlier Bengal Act III of 1878, to show either of two things, either the consent of the tenants to the jummabundi as recorded, or a notice of enhancement served upon the tenants, to justify the enhancement, then the case of the plaintiff was not made out, for that there was neither assent established nor notice proved. But the District Judge went on to hold that neither of these conditions need be complied with. Taking that to be the finding of fact, and that to be the proposition of law, we have to say whether the proposition has been correctly laid down; and, it appears to us that it has not been correctly laid down. It has been held in a series of cases that one or other of two things must occur in order to make the enhanced rent stated in a jummabundi settled under the Regulation which has been referred to, binding upon a tenant. There must be either an assent to that enhancement, or else there must be a compliance with the provisions of the rent law which was in force at the time, Bengal Act VIII of 1869, with regard to enhancement of rent; because it was long settled law, established by a series of decisions, that the rent of a Government Khas Mahal could only be enhanced by the same process as the rent on any private estate.
4. With regard to that it is not necessary to refer to more than a few cases. There is the well-known case of D'Silva v. Raj Coomar Dutt 16 W.R. 153; the case of Enayetoollah Meah v. Nubo Coomar Sircar 20 W.R. 207; and the case of Reazooddeen Mahomed v. Mc Alpine 22 W.R. 540.
5. In the first Court reliance was placed upon the case of Taru Patur v. Abinash Chunder Dutt I.L.R. 4 Cal. 79 as an authority for the contrary proposition; but it appears to us that that case is not really an authority for that for which it has been cited. All that was there decided was that the settlement jummabundi is a public document, and is admissible in evidence as such under Section 74* of the Evidence Act. It is evident that the question, whether it is admissible in evidence as a public document, and the question whether that which is in it is binding upon tenants without reference to the question of consent or notice, are entirely separate matters, and it is right to notice that even as to that which was actually decided in that case, viz., that the document was a public document, the question is now open to some degree of doubt, because it has been seriously questioned by the late Chief Justice and Mr. Justice Macpherson in the case of Ram Chunder Sao v. Bunsidhur Naik I.L.R. 9 Cal. 741. The passage occurs in p. 743 of the report.
6. It appears to us, therefore, that if this matter is to be disposed of under the provisions of the law as it was settled, independently of the Bengal Acts of 1878 and 1879, the decision of the Lower Appellate Court cannot be supported.
7. In the first Court, reliance was placed on Bengal Act VIII of 1879. Now, if there be any section in that Act which makes this jummabundi binding upon the tenants in question, it is Section 10, which says: 'Every under-tenant and ryot shall be liable to pay the rent recorded as demandable from him under this Act, unless it shall be proved in any suit instituted by such undertenant or ryot to contest his liability to pay the same that such rent has not been assessed in accordance with the provisions of this Act.' Taking that alone, it could not, we think,, affect this case, because it only deals with the rent recorded as demandable under the Act, that is to say, in compliance with the provisions of Sections 6 and 9, and those sections can only be complied with, if the settlement is actually made in accordance with the terms of the Act. And practically, therefore, it is hardly possible that a settlement could be made which would be affected by Section 10 unless it were substantially made after those clauses came into operation. But reference has further been made to Section 14, which says: 'The provisions of this Act shall apply to all settlement proceedings under Regulation VII of 1822, which may have been confirmed after the commencement of Bengal Act III of 1878, or which may hereafter be confirmed or sanctioned by the Revenue authorities from time to time empowered in that behalf by the Lieutenant-Governor, whether such proceedings shall have been commenced before or after the commencement of the said Act.' That, no doubt, makes the Act retrospective in this sense, that the effect of settlement proceedings having been commenced before the passing of the Act of 1878, or the Act now in question, is not fatal to the notion of the Act applying. On the other hand, it only makes the Act retrospective; and the provisions of the Act themselves only apply to settlements made in accordance with the terms of the Act, and they cannot therefore have any application to a case in which it has been found by the lower Courts that the settlement was made about two years before the first of the two Acts came into operation. For these reasons wo think that this appeal must succeed. The appeal is against the decision of the Lower Appellate Court to this extent, that the defendant objects to any rent having been allowed to the plaintiff in excess of the old admitted rate of rent, and in accordance with the enhanced rent. The details of the matter can readily be settled between the parties. The amount deposited by the defendant will be taken into account, and a decree made accordingly. In any event the appellant will have his costs of this appeal.
* Public documents.
[Section 74: The following documents are public documents:
1. Documents forming the Acts,-or records of the Acts-
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial, and executive, whether of British India or of any other part of Her Majesty's dominions or of a foreign country.
2. Public records kept in British India of private documents.]