1. These are three appeals from a decision of the District Judge of Nadia, sitting as a special Judge affirming a decision of the Assistant Seltlement Officer of Krishnagar.
2. In each of these cases the landlord appellant made an application to the Settlement Officer for a settlement of fair and equitable rent. The application appears, to be in a printed form, and it is somewhat difficult to make sure of the nature and exact scope of the claim intended to be conveyed by it. The body of the document appears to raise every possible claim including questions of excess area of lands. However, taking the document as a whole, we are not satisfied that the only matter dealt with by that application is settlement of rent within the meaning of those words in Section 109A, and we are not prepared to say that in these cases there is no right of second appeal. Accordingly it becomes necessary to examine into the particular facts.
3. In S.A. No. 1159 it appears that an application was made within two months of the final publication of the Record-of-Rights. It would seem that the Record-of-Rights recorded the tenancy in the name of a lady, Bhussani. The Record-of-Rights was finally published in November 1922. On 14th April 1923, the defendant Doshi Ghosain was added as a party. It then turned out that, while she was added as being the heiress pf Bhussani, she was not the heiress of, but a purchaser from, Bhussani. In these circumstances she set up a defence to say that she purchased a jama bearing a rental of Rs. 9-12-9. The learned special Judge said that it was unnecessary to decide the question of fact whether the land appertained to the jama of Rs. 9-12-9. The Assistant Settlement Officer having found the point in favour of the defendants and the landlord being desirous of contesting it before the Court, the learned special Judge proceeded upon the footing that as Doshi Ghosain was brought on the record on 14th April 1923, the proceedings against her were out of time because she was not impleaded until after two months from the final publication of the Record-of-Rights. It does not seem to me that that view is consistent with the decision of this Court in the case of Bir Bikram Kishore v. Ambika Gharan A.I.R. 1926 Cal. 1037. There three Judges of this Court laid it down that when Section 105(1), Beng. Ten. Act, speaks of an application it is not necessary for the landlord or the tenant, in making the application to name any person. It is only necessary to indicate the holdings in the record in respect of which a settlement; of fair and equitable rent is sought. Accordingly there was a perfectly good application in this matter brought within the two months and, on the doctrine of that case, it appears to me that this matter ought to go back to the learned special Judge, the preliminary objection as to time being overruled, in order that he may decide the case upon its merits. The appellant is entitled to her costs of this appeal.
4. The next appeal is No. 1161, and in this case it seems that the original defendant or tenant recorded in the Record-of-Rights was Danej Mia. One Jogendra Nath Ghosal was brought on the record toy a petition filed after two months from the date of the final publication, namely, on 16th April 1923. It turned out that Danej Mia's interest had been sold at auction, the sale certificate being in May. 1922, and possession is said to have been taken in April 1923. In this case, however, it appears that, although Jogendra Nath Ghosal's name had been substituted for Danej Mia on the application of the plaintiff, Jogendra was only one of several persons interested in the tenancy, Now, the matter was fought out to a finish in his presence and ultimately the application was dismissed on the ground that such an application must be brought against all the joint tenants. It does not seem to me to be right that in these circumstances this matter should be sent back in order that the other joint tenants should be impleaded. If the landlord went on against one only, then his advantage, such as it is, in being able to proceed under Section 105, must come to an end. She must be left to take such steps by way of suit in civil Courts as she may be advised. In these circumstances, I think, this appeal must be dismissed with costs.
5. As regards appeal 1160: there, it appears, that the recorded tenant was one Nagendra Nath Mukerjee, but that by the time the final publication took place in November 1922, this man was dead for about two years. Then an application was made on 18th July 1923 to bring the present defendant on the record and that was refused because it was more than two months from the date of the final publication. The case seems to me to be governed by the decision of the case of Bir Bikram Kishore v. Ambika Charan A.I.R. 1926 Cal. 1037, to which I have already referred. As regards this matter I think the appeal should be allowed, the decree of the lower appellate Court should be set aside and the case should be sent back to the Assistant Settlement Officer to proceed with the application against the proper parties. The appellant is entitled to her costs of this appeal.
6. We assess the hearing-fee in each case at one gold mohur.
7. I agree