1. These four appeals arise out of litigation among three parties, (1) Rai Satindra Nath Choudhury, appellant in Appeal No. 984, (2) Rai Dhirendra Nath Choudhury, appellant in Appeals Nos. 1061 and l062, and (3) Rai Harendra Nath Choudhury, who is respondent in the above three appeals and appellant in Appeal no. l355. Upon hearing the learned advocates, it appears that these three parties are co-sharer landlords in respect of a temporarily settled estate under Government and they are also co-sharer tenants in respect of certain permanent tenures which were created by their predecessors within the estate. It appears that in 1827, the Government of Bengal granted a permanent lease to the predecessors of the parties in respect of the estate. Thereafter, in 1840, the lessors created certain permanent tenures at fixed rent under the above permanent lease. These tenures were held by themselves. Thereafter in 1853, the Government offered certain terms to the lessors whereupon the lessors surrendered the permanent lease at a fixed rate given to them in 1827 and in place of the same they took from Government a lease for 99 years of the same estate. In 1926, when the term of 99 years was over, there was a cadastral survey and settlement under Ch. 10, Ben. Ten. Act. The Settlement Officer proceeded under Section 104 and settled the land revenue of the estate. The result was that the annual revenue which was previously paid at Rs. 1200 per annum was increased to Rupees 23,269. In so settling the land revenue, the Settlement Officer proceeded to settle the fair and equitable rent for tenants of every class as required by Section 104 and the rents of the holders of the tenures were accordingly settled at rates much more than the rates which had been fixed in 1840. In 1934, Rai Harendra Nath Choudhury instituted a title suit against Rai Satindra Nath Choudhury and Rai Dhirendra Nath Choudhury praying for a declaration that the assessment of rent made in 1926 by the Settlement Officer was without jurisdiction and illegal. In the same year, Rai Satindra Nath instituted a suit against Rai Dhirendra Nath and Rai Harendra Nath claiming the same declaration that the assessment of rent of 1926 was without jurisdiction and illegal. Both these suits were dismissed by the trial Court which held that the assessments were in accordance with law and not ultra vires. In appeal, the decrees were reversed and it was held that the assessments were illegal and without jurisdiction. From those decrees arise Appeals Nos. 984, 1355 and 1061. The question in these three appeals is whether the assessment of rent made by the Settlement Officer in 1926 is without jurisdiction and illegal. It is worthy of note, as the first Court held, that during the settlement operation the parties as the tenure holders did not raise any objection on the point of the settlement of rent. They as proprietors submitted to pay enhancement and executed in 1926 a fresh kabuliat agreeing to pay rent at Rs. 23,000 odd. Subsequently on various representations made by the parties as landlords and various other landlords of the Sundarbans the Government of Bengal reduced the revenue from Rs. 23,000 odd to Rs. 10,916. It would appear that as tenure-holders also they made a representation to Government. The Court of Appeal below has referred to a letter of the Government of Bengal dated 19th January 1932 in which it was said:
As the leases to the Sub-tenants were granted at a time when the grantees had the right to grant mokorary mourashi leases, these mokorari mourashi leases are prima facie binding on Government and therefore special orders regarding assessment of such estates are necessary.
2. From this statement in the Government letter, the learned District Judge has concluded that the mokorari mourashi leases being binding on Government any alteration of rent by the Settlement Officer was ultra vires and without jurisdiction. In our opinion, the view taken by the learned District Judge cannot be supported. It was the opinion of the Government that the mokorari mourashi leases were prima facie binding on Government. They did not thereby set aside the settlement of rent made by the Revenue Officers. They had jurisdiction to do so but they did not do so. They stated that special orders regarding the assessment were necessary but apparently the parties as tenure holders did not pursue the matter further and did not approach the Government to take necessary steps to revise the settlement of rent of these leases. Until they are revised or set aside by Government, these settlements of rent are lawful and binding on the parties.
3. Many authorities were cited. It is unnecessary to refer to them as none of them are to the point. Section 104 is perfectly clear. It lays down that in every case where a settlement of land revenue is about to be made the Revenue Officer shall settle fair and equitable rents for tenants of every class. These are plain words and there is no limitation to the jurisdiction of the Revenue Officer. There is a provision that the Revenue Officer shall not settle rents of tenants in an estate belonging to Government if it does not appear to the Local Government to be expedient that he should do so. In other words, the Revenue Officer in proceeding to act under this section in a Government estate as in the present case-is bound to follow the directions of the Government. If only the three parties now before the Court or their predecessors had approached the Government properly they might have persuaded the Government to-direct the Revenue Officers to revise the rents which had been settled in 1926. But until they do so, the assessment of rent will stand. The result is that all these three appeals, Appeals Nos. 984, 1061 and 1355 of 1936, are allowed with costs. Next comes Second Appeal No. 1062 of 1936. This-appeal arises out of a rent suit which was instituted in 1934 by Rai Dhirendra Nath Choudhury against Rai Harendra Nath Choudhury claiming rent on the basis of the rent settled in 1926. The defence was that the assessment of 1926 was not binding on. the defendant and he was liable to pay on the basis of the patta of 1840. The trial Court rejected the defence and decreed the suit. In appeal, the decree was reversed and the rent was decreed on the basis of the patta of 1840. It is worthy of note that this attack on the settlement of rent of 1926 was only made after the Government letter of 1932. Previous to that, in November 1929 Rai Dhirendra Nath instituted a rent suit against Rai Harendra Nath claiming rent according to the record of rights for the years 1332 to 1335. There, Rai Harendra Nath made no objection to pay rent according to the record of rights. He merely claimed set-off on account of rents which were due from Rai Dhirendra Nath to himself. That also he claimed according to the record of rights. It was only in the year 1934 that the parties thought fit to claim that the assessment of rent of 1926 was illegal.
4. It is urged for the respondent that the permanent lease at a fixed rent was created in 1840 at a time when the estate was permanently settled and when the estate was unsettled in 1853, these kabuliats of 1840 were not altered and the tenure holders are entitled to insist on the terms of the kabuliat of 1840. In support of this view, the cases in Pria Nath Das v. Ram Taran Chatterji (1903) 30 IA 159, Prafulla Nath Tagore v. T. C. Tweedie (1922) 9 AIR Cal 248 and Sarada Prosad Ghose v, Prafulla Chandra Ghosh : AIR1938Cal188 have been quoted. In all those cases, it was held that the tenure holder was entitled to rely on the terms of the kabulia'c as against the landlord who or whose predecessor had granted the kabuliat even though a portion of the land held by the tenant was resumed by Government and assessed to increased rent. The basis of those cases was that the parties were different and distinct. In this case the par-ties are the same figuring as landlord in one case and as tenant in the other case. As landlords they had voluntarily agreed to Government in 1853 that this estate should be made a temporary estate for 99 years ending with 1926. While they did so, they knew very well that the permanent tenures which their predecessors had created for themselves in 1840 stood to be tenures held under a temporarily settled estate. As in 1926 it was a temporarily settled estate whose term was over, it was the duty of the Revenue Officer to settle the land revenue under Section 104, Bengal Tenancy Act and Section 104 made it necessary for the Settlement Officer to settle fair and equitable rents for tenants of every class. The parties must be presumed to have been cognizant of all the actions of the Settlement Officer. After the Settlement Officer prepared his rent roll and duly published it in the Record of Eights, the parties as tenure-holders, if they objected to the settlement of the rent, could have made objections under Section 104 (E) and made appeals under Section 104 (G). They made no objections to the settlement of rent. Section 104 (H) provides that they might institute a suit either on the basis that they were tenants at a fixed rent and therefore their rents could not be enhanced or that the special conditions of the kabuliat under which they held the lands had not been recorded. They did not institute any such suit. Therefore they are hit by Section 104 (J) which provides, subject to the provisions stated above, that the rents settled shall be deemed to have been correctly settled land to be fair and equitable rents within the meaning of the Act.
5. Every case has to be decided upon its own facts. The facts of this case are peculiar. In one case Rai Satindra Nath claimed a declaration that the assessment was illegal against Rai Dhirendra Nath and Rai Harendra Nath and they opposed the said declaration and in another suit Rai Harendra Nath claimed the very same declaration against Rai Satindra Nath and Rai Dhirendra Nath and they resisted that declaration. All these troubles arise because the parties are co-sharer landlords in respect of the estate and also co-sharer tenants in respect of the tenures. But as their shares are not the same in respect of the estate and in respect of the tenures their interests become different. But as they as tenants knew very well the actions taken by the Revenue Officer and approved by themselves as landlords, they in our opinion have lost their right to agitate the matter any further. In the result the decree of the Court of Appeal below is reversed and that of the trial Court restored with costs.