B.K. Mukherjea, J.
1. This appeal is one under Section 15, Letters Patent and is directed against a judgment of Jack J., dated 7th July 1938 passed in appeal from appellate decree No. 1914 of 1936. The appellants before us are the defendants in a suit commenced by the plaintiffs-respondents for assessment of fair rent in respect of the lands described in the schedule to the plaint and for recovery of damages for use and occupation of the same for the years 1339 to 1341 B.S. The facts so far as they are material for our present purposes may be narrated as follows : The disputed lands in respect to which the plaintiffs seek assessment of rent are included in a chak known as Chak Sarmasta appertaining to two touzies, namely touzies Nos. 2 and 16 of the 24 - Parganas Collectorate. Touzi No. 2 has an undivided 13 annas 10 gandas and odd share in all the lands of the chak while touzi No. 16 has the balance of 2 annas 9 gandas and odd share. This chak, which is said to comprise an area of 200 standard bighas, was claimed as lakheraj by the holders thereof at the time of the permanent settlement and as such it was not assessed to revenue in 1793. In 1839 the Government started resumption proceedings with regard to these lands under Regulation II of 1819, and in 1841 the Collector passed orders directing the resumption of the entire chak. There was an appeal against this order to the Commissioner who found that there were valid and proper lakheraj grants covering an area of 133 bighas of land while the rest were mal lands liable to be assessed to revenue. As the area of the lands with regard to which the lakherajdars failed to make out any valid title was less than 100 bighas, the Government, it appears, did not proceed further in the matter and it was left to the zamindars to take such steps as they thought proper. The zamindars were no other persons than the lakherajdars themselves and, as naturally could be expected in these circumstances, they remained entirely inactive and were contented to enjoy these lands as part of their estate. Of the two touzies to which the lands appertained, touzi No. 2 was sold for arrears of Government revenue on 24th January 1909 and it was purchased by the present plaintiffs.
2. In 1927 the plaintiffs instituted a suit for recovery of possession of the lands of the chak to the extent of their 13 annas and odd gandas share. This suit was decreed by the Courts below and a second appeal was taken to this Court by the defendants which was numbered appeal from appellate decree No. 1849 of 1929. The learned Judges (Pearson and Jack JJ.) who heard the appeal allowed it in part and held that the plaintiffs' suit for khas possession would fail inasmuch as the defendants being the descendants of the holders of an invalid lakheraj were protected from eviction, but it was held at the same time that with the exception of 133 bighas to which the defendants showed a valid lakheraj title, the plaintiffs would be entitled to get fair rent assessed with regard to the remaining lands of the chak. After this decision, and in pursuance of the directions contained in the judgment, the present suit was instituted by the plaintiffs and they claim to have assessment of rent on all the lands of the chak outside the 133 bighas and also damages for use and occupation on the basis of such rent for a period of three years prior to the suit. The trial Court decreed the plaintiffs' suit in part. The rent was assessed and fixed at Rs. 150 per annum with effect from the beginning of the year 1342 B. Section The claim for damages was disallowed. On appeal to the lower Appellate Court this decision was modified in some respects. The rent assessed was reduced to Rs. 143-12-0 a year, but the plaintiffs were allowed compensation for use and occupation at that rate for a period of three years prior to the suit. Then there was a second appeal taken to this Court by the defendants and Jack J., who heard the appeal affirmed the decision of the lower Appellate Court with slight alterations which were necessary by reason of certain errors in the calculations. It is against the decision of Jack J., that the present appeal has been preferred under Order 15, Letters Patent.
3. Mr. Gupta who appears for the appellants has raised three points before us in support of the appeal. He has contended in the first place that the present suit for assessment of rent commenced by the plaintiffs, is not maintainable in a Civil Court and it is the Collector and Collector alone who can assess revenue or rent under the provisions of Section 9 of Regn. 19 of 1793. The second ground taken is that even if the Civil Court had jurisdiction to try the suit, rents could not be assessed in accordance with the provisions contained in Section 7, Bengal Tenancy Act. The assessment, it is said, must be made on the basis of the actual produce of the lands in suit at the date of the permanent settlement or, at any rate, at the date when the first resumption proceedings were started by Government. The last point urged is that in any view of the case the Courts below should not have given the plaintiffs a decree for damages on the basis of rents assessed for any period antecedent to the date of the suit. I will take up these points one after another.
4. On the first point Mr. Gupta's argument in substance is, that the right of the zemindars to have revenue or rent assessed in respect of lands held under an invalid lakheraj grant was created by Section 6 of Regn. 19 of 1793. It was the Government who assigned over to the zamindars the right which it itself had to the revenue of such lands. The Regulation in Section 9 laid down the procedure which was to be followed by the zemindars in getting revenue assessed in such cases and the remedy provided by Section 9 must in these circumstances be held to be exclusive. It is no doubt a well settled principle that when a statute creates a right or obligation and enforces its performance in any particular manner, then ordinarily the performance could not be had in any other manner. In Wolverhampton New Waster Works Co. v. Hawkesford (1859) 6 C.B. (NS) 336 at page 337 Willes J. referred to three classes of cases in which a liability founded upon a statute might be sought to be enforced. The three classes were stated as follows:
One is where there was a liability existing at Common law and that liability is affirmed by statute which gives a special and peculiar form of remedy different from the remedy which existed at Common law : there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of eases is where the statute gives the right to sue merely but provides no particular form of remedy : there the party can only proceed by action at Common law. But there is a third class, namely where a liability not existing at Common law is created by statute which at the same time gives a special and particular remedy for enforcing it.
5. With respect to that class, it was held that the party must adopt the form of remedy given by the statute. This decision was approved of by the Judicial Committee in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. (1935) A.C. 532 and still later in Secy. of State v. Mask & Co. . If the defendants in the present case are really the holders of an invalid lakheraj under a grant prior to 1790 and the right of proprietors to the revenue of such lands is based upon Section 6 of Regn. 19 of 1793, it seems to me to be fairly clear that the plaintiffs can have the revenue assessed only in the manner contemplated by Section 9 of the Regulation. Dr. Basak, who appears for the respondents seeks to repel this contention in two ways: He argues first of all that Section 9 of Regn. 19 of 1793 provided only an alternative remedy of a summary character and the general jurisdiction of Civil Courts was not taken away. In the second place he has argued that the procedure laid down in Section 9 was altered by Section 30 of Regn. 2 of 1819 which again was replaced by Section 2 of Bengal Act 7 of 1862 and under the Act of 1862 a Civil Court is quite competent to entertain a suit of this character.
6. As regards the first point it is pointed out that the remedy provided by Section 9 of Regn. 19 of 1793 is imperfect for more reasons than one. The revenue has to be fixed by the Collector on a report made to him by the zamindars and that has to be confirmed by the board of revenue. The lakherajdar would occupy the position of a dependent talukdar and enjoy the property from generation to generation only if he agreed to pay that revenue. Nothing is said as to what would happen if the grantee of an invalid lakheraj tenure refused to pay the settled revenue. It may be, that this is a defect in the framing of the section or it may be that the framers of the Regulation thought that the ordinary rule under which the estate of a recusant proprietor was settled with farmers or outsiders would also apply in this case. But even if it is conceded that the right of the grantee of an invalid tenure to dispute the revenue assessed upon his property by the Collector or the' revenue authorities can be decided in the7 ordinary Civil Courts, that is of no assistance to the plaintiffs, for no such contingency has arisen in the present case and no revenue has been fixed by the Collector or the board of revenue to which exception has been taken by the defendants.
7. The other point raised by Dr. Basak was indeed accepted by Jack J., in this Court and it was held by the learned Judge that a Civil Court would have jurisdiction to entertain a suit for assessment of rent under Section 2 of Bengal Act 7 of 1862. Mr. Gupta contends that Section 2 of Act 7 of 1862 as well as Section 30 of Regn. 2 of 1819 relate to proceedings for resumption, pure and simple, where the only matter to be considered and determined by the Court is, as to whether the lands are liable to be assessed to revenue or not. They do not contemplate proceedings for assessment proper and the actual fixing of the revenue has all along been left to the revenue authorities. The provisions of Section 9 of Regn. 19 of 1793 were, therefore, left intact by subsequent regulations. It seems to me that this contention is sound. A distinction between resumption and assessment is made in Regn. 19 of 1793 itself and whereas the liability to pay revenue had to be determined by the Civil Court under Sections 11 and 12 of the Regulation, the actual assessment was to be done by the Collector under Sections 8 and 9 of the same. The procedure for resumption was certainly altered to some extent by Regn. 2 of 1819. Sections 5 to 29 of this Regulation were taken up with the procedure to be adopted by Government where resumption of its own revenue was concerned. Section 30 made provisions for the private proprietors in regard to lands which they could resume. This section declared that:
All suits preferred in a Court of judicature by proprietors, farmers or talukdars to the revenue or any land held free of assessment...shall immediately on the institution be referred for investigation to the Collector or other officer exercising the powers of the Collector provided also that proprietors, farmers or talukdars who may deem themselves entitled to the revenue of any land held free of assessment in their respective estates shall be at liberty to prefer the claims in the first instance to the Collector.
8. The section described in detail the procedure that had to be followed and in case where reference was made by a Court of judicature the Collector was to transmit the papers together with his own opinion to the Judge who was to decide the matter finally. A suit by a proprietor against the grantee of a lakheraj tenure, if the grant was before 1790 and the area did not exceed 100 bighas, would certainly come within the purview of Section 30 of Regn. 2 of 1819; but the detailed provisions of this section do not show that the final order contemplated by this proceeding related to anything more than determination of the question of liability to assessment. The dual system, which was sanctioned by Regn. 2 of 1819, it seems, was found to be inconvenient; hence the section itself was repealed by Bengal Act 7 of 1862 which by Section 2 provided as follows:
All suits preferred by proprietors, farmers or talukdars to resume the revenue of any land held free of assessment as well as all suits preferred by individuals claiming to hold land exempted from the payment of revenue shall be instituted, heard and determined in and by the Courts of Civil Judicature like ordinary civil suits.
9. Here, again, I am inclined 'to think that suits to which this section relates are resumption suits strictly so-called and the only question for determination by the Court is whether the lands are or are not liable to be assessed to revenue. But though I do not agree with Dr. Basak that the procedure laid down in Section 9 of Regn. 19 of 1793 was altered by subsequent enactments, I am of the opinion that on the facts and circumstances of the present case Section 9 of Regn. 19 of 1793 has no application. Regn. 19 of 1793 makes separate provisions for resumption and assessment of different kinds of invalid grants. When the grant is prior to 1st December 1790 and the area exceeds 100 bighas, the revenue is declared to belong to the Government and Section 8 lays down the procedure to be followed in assessing such lands to revenue. If the grant is prior to 1790 but the area does not exceed 100 bighas, the revenue, is given to the private proprietor within the ambit of whose estate the lands are situated and he can have the revenue assessed on such lands by following the procedure laid down in Section 9. Lastly, if the grant is made after 1790 it is declared to be null and void and the proprietor was empowered by Section 10 of the Regulation to dispossess the grantee and to recover rent at the pargana rate without taking any judicial proceeding whatsoever. So far as the lands in suit are concerned, the defendants have not been able to establish grant of any kind either before or after 1790. The resumption proceedings show that there was a valid grant with regard to 133 bighas of land, and the rest was not covered by any grant at all. Neither in the present suit nor in the earlier one did the defendants take up the position that they were dependent talukdars under the provisions of Sections 6 and 9 of Regn. 19 of 1793. On the other hand, their express defence throughout was that they were holding the lands in assertion of their lakheraj rights as a part of the independent lakheraj estate which was formed out of 133 bighas of land ever since the time of the permanent settlement or, at any rate, since 1840 when the resumption proceedings were started. The Court of Appeal below had therefore no justification to hold that there was a grant prior to 1178 B.S., simply because there was no evidence on either side to show that there was any grant of a later date. If there is no evidence of any grant in this case prior to 1790, and I do not think that there is any, nor even a claim to hold the lands on the pretence of such grant prior to 1790 - I do not think that the plaintiffs are bound to follow the procedure laid down in Section 9 of Regn. 19 of 11793.
10. It is contended by Mr. Gupta that it is no longer open to the plaintiffs to take up this position after the final decision of this Court in the previous suit between the parties. As stated already, the previous suit was started by the present plaintiffs for recovery of possession of these lands on establishment of their title as revenue sale purchasers. The plaintiffs' case was that the lands were a part of the mal estate. The defence taken by the defendants was that they had acquired a good title to the lands by open assertion of lakheraj title ever since the time of the permanent settlement. Both the Courts below decreed the plaintiffs suit. A second appeal which was taken to this Court was heard by Pearson and Jack JJ., and the material portion of the judgment which was delivered by Jack J., runs as follows:
Finally, it is urged that in any case the plaintiffs can only claim rent from the defendants for the lands of the chak to which their proprietary right is established. It is clear from the provisions of Sections 4 to 6 of Regn. 19 of 1793 and Section 3 of Regn. 2 of 1819 that there was no intention in the resumption proceedings to dispossess the holders of invalid lakheraj but rather to assess them to revenue where the land exceeded 100 bighas or to rent under the proprietors of the estates within whose boundaries they were included where the area is less than 100 bighas as in this case. In so far therefore as the contesting defendants are the successors of the original holders of the invalid lakheraj which was resumed, they are entitled to continue to hold the lands as tenants of the proprietors of the estate to which they belong.
11. In the decree that followed the plaintiffs were given an express declaration of their title as proprietors and they were held entitled to have fair rents assessed in respect of these lands. Nowhere in his judgment did the learned Judge find clearly that the defendants were grantees of lakheraj tenure prior to 1790 and, in fact, no such case was attempted to be made on behalf of the defendants either in the pleadings or in the evidence. 'What the learned Judges seem to base their decision upon was the supposed policy of the resumption proceedings as laid down in Sections 4 to 6 of Regn. 19 of 1793 and Section 3 of Regn. 2 of 1819 and in that view it was held that the defendants were protected from eviction but were bound to pay rents. It was not said that the plaintiffs would have the revenue assessed on the lands in the manner laid down in Section 9 of Regn. 19 of 1793; on the other hand, their proprietary title on the basis of their purchase at a revenue sale was declared and they were held entitled to fair rents from the defendants as tenants. In my opinion, it is difficult to say that this judgment declared the position of the defendants to be that of grantees under an invalid lakheraj grant prior to 1790, but even if it is held that as this was the assumption upon which the decision was based it could not be disputed now, I think 'that the defendants likewise are bound by the other part of the decision which declared their liability to be assessed to rent as tenants of the plaintiffs whose proprietary right to these lands was declared. If Mr. Gupta's contention is right and the judgment of the previous suit is taken to have finally settled the rights of the parties irrespective of what they would be according to the strict interpretation of law, I think that the plaintiffs would be clearly entitled to claim assessment of rent in a civil suit as is obviously contemplated by the aforesaid judgment and the defendants would be precluded from raising the plea in bar under Section 9 of Regn. 19 of 1793. It may be pointed out that the plea as to want of jurisdiction was not taken by the defendants in their written statement in the present suit though the point was argued at the time of hearing. In my opinion, the first contention of Mr. Gupta must fail.
12. The next question raised by Mr. Gupta relates to the propriety of the way in which rent has been assessed in the present case. It may be conceded that Section 7, Ben. Ten. I Act, has no application here. But even if we attempt to assess rents on the same principle upon which revenue has got to be assessed under Regn. 19 of 1793, I do not think that the defendants can be said to have any grievance. The Courts below have assessed the rent at the rate of Re. 1-5-0 as a bigha. According to Sections 8 and 9 of Regn. 19 of 1793 even if the grant was presumed to be prior to 1179 B.S., the revenue was to be half of the tactual produce. The actual produce at the present day cannot be less than Rs. 3 a bigha and I do not think therefore that the basis of assessment is in any way wrong. We cannot accept Mr. Gupta's contention that we must look to the value of the produce at the time of the permanent settlement. This is not warranted by Section 5 of Regn. 19. The material time I think is when the lands are actually resumed and held liable to be assessed to revenue. This could not be earlier than the decision of this Court in the previous suit between the parties. This contention therefore must also be overruled.
13. The last point raised by Mr. Gupta should, in our opinion, succeed. The plaintiff had no right to claim rents unless the rents were actually settled. We therefore dismiss the claim of the plaintiff for recovery of damages for use and occupation for a period of three years prior to the institution of the suit. We direct that the rent assessed by the Court below which is fixed in perpetuity, would be operative from the commencement of the Bengali year 1345 B. Section Subject to these modifications, we affirm the decision of Jack J., and dismiss this Letters Patent appeal. No order as to costs of this Court.
Nasim Ali, J.
14. I agree with the judgment ju9t now delivered by my learned brother. The defendants' case in the written statement is that they are holding the disputed land as lakheraj since the time of the permanent settlement. They are therefore on their own case, not entitled to the rights and privileges of the dependant talukdars.