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Gopi Nath Masant and ors. Vs. Adoita Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal777
AppellantGopi Nath Masant and ors.
RespondentAdoita Naik and ors.
Cases Referred and Lala Kirat Narain v. Palukdhari Pandey I.L.R.
Excerpt:
second appeal - bengal tenancy act, chapter x, sections 104, clause 2,106,107,108, clause 2--dispute as to entries in record of rights--question as to status of ryots--order of special judge on appeal from settlement officer--civil procedure code, section 622. - .....entries other than entries of rent settled.16. now, it is clear that the decision of the special judge appealed against in the present cases was not passed in cases under section 106. the decision of the settlement officer of the 8th december 1891 was the only one which dealt with the question of the status of the ryots. this was no doubt a decision in a proceeding under chapter x, but it was not a decision in a case under section 106. it was passed before the record bad been framed. after the record had been framed there was no dispute as to the correctness of any entry except the entry of the rent settled, and hence it seems to us no second appeal lies to this court, see the cases of shewbarat koer v. nirpat roy i.l.r. 16 cal. 596 and lala kirat narain v. palukdhari pandey i.l.r. 17.....
Judgment:

Trevelyan and Rampini, JJ.

1. The facts of these oases have not been fully or clearly stated by the lower Courts. It has, therefore, been very difficult for us to understand what has actually taken place.

2. We find, however, that there were two suits, Nos. 42 and 43, under Section 104 (d) of the Bengal Tenancy Act brought before the Settlement Officer of Midnapore on the 26th September 1891.

3. The plaintiff's in these suits were (1) the Masants who were co-sharer-landlords to the extent of 13 annas in respect of the lands held by the defendants; and (2) the Court of Wards who represented two minors who were the co-sharer-landlords of the remaining 3 annas share. The defendants in suit No. 42 were 119 ryots, and in suit No. 43 were 311 ryots of the mouzahs Maguri and Jagannathchak, pargana Kashijora.

4. The parties in the proceedings before the Settlement Officer were at issue as to two points: (1) as to the status of the defendants, and (2) as to the rates of rent payable by them. The Settlement Officer, by his decision of the 8th December 1891, gave the first point in favour of the defendants, and the second in favour of the plaintiffs.

5. We have been told that subsequently on the 10th December 1891, the Settlement Officer issued a notice, under Rule 33 of the Government rules under the Tenancy Act; that on the 10th January 1892 he published the draft khatian, that on the 11th idem he issued a notice under rule 34; and on the 18th February 1892 he finally published the khatian or record of rights. Then on the 19th February 1892, that is, the day after the final publication of the khatian, he recorded the evidence of one Aftabuddin Mahomed, manager under the Court of Wards, who said that the lands had been assessed at rates higher than the ryots would be able to pay, upon which on that date, the 19th, and the following date, the 20th, he reduced the assessment on tanks and dobas to Be. 1 instead of Rs. 8 as before.

6. Meantime, on the 2nd February 1892, both the Masant landlords and certain of the defendants had appealed to the Special Judge.

7. The Masant landlords' appeals were numbered 236 and 237, and the tenants' appeals were numbered 119 and 120. But the Court of Wards did not appeal on behalf of the minors, and out of the 311 defendants in suit No. 43 only 45 appealed.

8. We have not been told how many of the defendants out of the 119 defendants in suit No. 43 have appealed in special appeal No. 2149, and on the view of the case which we take this point is not material.

9. The Special Judge decreed all the appeals. He held the revised assessment by the Settlement Officer on the 19th and 20th February to have been ultra vires, and he set it aside. He also set aside the assessment of the 8th December 1891, and declared that the record of rights as regards the rent payable by each tenant was null and void. He further ordered that 'if the landlords desire further enquiry they will have to pay for it. It will no longer be open to them to adduce evidence as to existing rates. The enquiry would be directed to ascertaining fair rents.'

10. Two further facts remain to be noted, viz., (1) that on the 25th November 1892, an application in respect of this matter was made to this Court under Section 622 of the Civil Procedure Code, but was rejected by Tottenham and Ameer Ali, JJ.; and (2) that on the 14th December 1892, the Masant plaintiffs applied to the Settlement Officer for a re-enquiry, apparently in pursuance of the Special Judge's order of the 1st September 1892.

11. Now, the Masant plaintiffs appeal to this Court in special appeals Nos. 2148 and 2149, and urge--(1) that the order of the Special Judge was wrong, inasmuch as it set aside the Settlement Officer's decree, not only as against the defendants who appealed to him, but as against the remaining defendants who did not appeal, including 6 (Nos. 1, 17, 106, 117, 124 and 282), who, it is said, admitted the rates of rent claimed from them by the plaintiffs; and (2) that as regards the tenants who did appeal, their appeal was not ripe for hearing and should not have been heard by the Special Judge.

12. On the other hand, on behalf of the respondents i.e., the whole of the defendants, who have all been made respondents, a preliminary objection is urged to the effect that no appeal lies, as the decision of the Lower Appellate Court deals with the question of the rate of rent only and with no other question.

13. We must dispose of this preliminary objection in the first instance, and it seems to us that we must give effect to it. No doubt, as has been contended by the learned Counsel for the appellants, the decision of the Settlement Officer of the 8th December 1891 disposed of a question of the ryots' status as well as of the question of the rates of rent payable by them, but we do not think that there was any 'dispute' on this point within the meaning of Section 106 as between the parties so as to give a right of second appeal to this Court.

14. It must be admitted that the provisions of Chapter X of the Bengal Tenancy Act are somewhat obscure as regards the procedure to be followed in cases under the chapter; but, as far as we understand them, there is to be (1) a framing of the record of rights; (2) a draft publication for a period of one month, during which time 'objections' may be preferred; and (3) a final publication, previous to which publication 'disputes' as to the correctness of the entries in the record of rights other than entries of rents settled are to be heard and decided.

15. Under Section 107 the decisions of the Settlement Officer in all proceedings under the Chapter are to have the force of a decree, and under Section 108, Clause 2, an appeal lies to the Special Judge from all decisions of the Settlement Officer. But it is only in cases under Section 106 decided by the Special Judge that a second appeal lies to this Court, and such cases can only relate to disputes regarding the correctness of entries other than entries of rent settled.

16. Now, it is clear that the decision of the Special Judge appealed against in the present cases was not passed in cases under Section 106. The decision of the Settlement Officer of the 8th December 1891 was the only one which dealt with the question of the status of the ryots. This was no doubt a decision in a proceeding under Chapter X, but it was not a decision in a case under Section 106. It was passed before the record bad been framed. After the record had been framed there was no dispute as to the correctness of any entry except the entry of the rent settled, and hence it seems to us no second appeal lies to this Court, See the cases of Shewbarat Koer v. Nirpat Roy I.L.R. 16 Cal. 596 and Lala Kirat Narain v. Palukdhari Pandey I.L.R. 17 Cal. 326, which have been followed in several unreported cases.'

17. We have been asked if in our opinion no appeal lies in these cases to deal with the memoranda of appeal as if they were applications under Section 622, Civil Procedure Code. But we cannot do so for the reason that an application under Section 622 with regard to this matter has already been rejected by this Court, viz., on the 25th November 1892. Circumstances have not altered since that application was refused, and from any point of view we do not think that his is a case in which the ends of justice require that we should interfere under Section 622.

18. We therefore dismiss these appeals.

19. This order will direct that the appellants do pay the costs of the respondents.


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