Mitra and Ormond, JJ.
1. One of the estates of the plaintiff, who is the appellant before us, was surveyed under Chapter X of the Bengal Tenancy Act. The final publication of the record was made on the 16th December 1901. On the 18th February 1902 the plaintiff applied for the settlement of fair rents on the ground of the prevailing rate being higher than that paid on the ground of the rise of the price of staple food-crops, and on the further ground of increase in the areas of the holdings. The petitions were expressly made under Section 105 of the Act, and it does not appear to us that there is any other section of the Act under which the applications could be made.
2. The Settlement Officer held on the 16th November 1902 that the plaintiff was entitled to increase of rents on account of increase in areas. On appeal, however, the Special Judge under the Act has dismissed the applications, he being of opinion that no case was made out for enhancement of rents on any of the grounds stated in the applications.
3. Appeals have been presented to us from the decision of the Special Judge, and a preliminary objection has been taken by the learned vakeel for the respondent that the appeals are not entertainable under the provisions of Section 109, Sub-section (3). If these cases were governed by the Bengal Tenancy Act before its amendment by Act III (B.C.) of 1898 there could be no doubt that the appeals would not be entertainable. In Sheubarat Koer v. Nirpat Roy 1889) I.L.R. 16 Calc. 596, Lala Kirut Naraynn v. Palukdhari Pandey (1889) I.L.R. 17 Calc. 326 and Achha Minn Chowdhry v. Durga Churn Law (1897) I.L.R. 25 Calc. 146, it has been expressly held that no appeal lies from an order settling rent under Chapter X of the Bengal Tenancy Act, as the settlement of rent under Section 104 of the Act included increase of rent for increase in area.
4. The question before us is--whether the words in Sub-section (3) of Section 109A 'not being a decision settling rent' include cases like the present in which the existing rents were not varied and the increase of rent was sought for on, amongst other grounds, the increase in the area of the holdings.
5. Section 105, Sub-section (1) enables a landlord to make an application within two months of the final publication of the record of [rights under Section 103A, Sub-section (2) for the settlement of rent, and the section lays down that the Settlement Officer should then settle a fair and equitable rent in respect of the lands held by the tenant. The Settlement Officer is bound under the law to settle a fair and equitable rent, but the law does not necessarily contemplate that the rent should either be abated or be enhanced. On the other hand, Sub-section (4) of Section 105 expressly says that in settling rent under this section the Revenue Officer shall presume, until the contrary is proved, that the existing rent is fair and equitable, intending thereby that when a Revenue Officer finds that the rent paid is fair and equitable and does not therefore vary the rent, either by an order for abatement or by an order for enhancement, the order amounts to settling a fair and equitable rent within the meaning of Section (1).
6. Section 37 of the Act puts a limitation to the right of bringing a suit for enhancement of rent within 15 years of an enhancement either by contract or by a decree of Court. But the limitation is not confined merely to cases where an enhancement is actually made. It applies to cases where a suit for enhancement is dismissed on the merits. Section 37 should be read with Section 113 as they are based on the same principle. It would seem that the Legislature contemplates that settling fair and equitable rent means not only variation of rent, but also fixing the same rent, which was paid before, as fair and equitable. We cannot therefore read the words in Sub-section(3) of Section 109A 'not being a decision settling a fair rent' as indicating a variation of rent and not a case where the same rent as was paid before is considered to be fair rent.
7. It is also clear from Section 113 of the Act that the jurisdiction of. Revenue Officers under Chapter X of the Act is not confined to cases of enhancement of rent on the ground of the prevailing rate being higher or on the ground of an increase in the price of staple food-crops, but also on the ground of alteration in the area of the tenure or holding. A Revenue Officer acting under Chapter X has the power and has to do the duties of a Survey Officer under the Survey and Demarcation Act and has to ascertain the areas and boundaries of holdings, and in settling rents he must take into consideration the areas of the holdings. The operation of Section 105, Sub-section (1) cannot be limited to variation of rents on the grounds specified in Section 20, but necessarily includes variations contemplated by Section 52. By Section 104 of the Act before its amendment, the Revenue Officer was expressly authorized to fix an increased rent on account of excess in area. But notwithstanding that the section has been repealed, Section 113 indicates that the Revenue Officer has under Section 105, Sub-section (1) power to increase rent on the ground of excess area or to decrease the rent of a holding, if it be found to contain less land than that for which the landlord was getting rent.
8. That being so, and having regard to the previous cases under the law before its amendment, we cannot but come to the conclusion that the second appeals are not maintainable. The preliminary objection therefore Prevails and these appeals are dismissed with costs.