1. It appears that an island formed in the Dhaleswari river, in the District of Khulna, to which the provisions of Bengal Act IV of 1868 would seem to have been applicable. Possession of the island was taken by the Government, and in the year 1903 the island was settled with the plaintiffs for a period of five years expiring on the 31st March 1907, as Chur Sonaknr, bearing Touzi No. 1020. This temporary settlement was continued for another period of five years ending on the 31st March 1912. The Revenue Authorities then decided that there should be, a fresh assessment of revenue. The estate was, therefore, re-settled for one year only with the plaintiffs, and proceedings were taken under Regulation VII of 1822 to re-assess the revenue. The result was, that the estate was settled with the plaintiffs for a term of five years commencing on the 1st April 1913 at an annual revenue of Rs. 674, the previous revenue having been Rs. 178.
2. In 1917 the plaintiffs instituted four suits for rent which have given rise to the second appeals now before us. The Courts below concurred in dismissing these suits on the ground that the Revenue Authorities were not at liberty to proceed under Regulation VII of 1822, but were bound to proceed under Act IX of 1847. As to that Act, the lower Appellate Court was of opinion that it was not open to the Revenue Authorities to apply its provisions because ten years had not elapsed from the date of the last previous Survey thereunder. The learned Subordinate Judge seems to have assumed without finding, that a Survey of the land had been made under the Act before the second Settlement of 1907. But, apart from that, I should have thought, though I do not decide the point in these appeals, that in the circumstances the Act of 1847 had no application and that in the case of a temporarily settled estate such as this, it would always be open to the Revenue Authorities to re-assess the revenue and re-settle the estate with effect from the expiry of a previous term of Settlement.
3. Here, however, the Revenue Authorities not only re-assessed the revenue and made a new Reyenue Settlement of the estate, they also purported to settle the rents payable by the defendants, and these suits are for arrears of rent at the rates thus settled. The question, therefore, arises whether the defendants are under a legal liability to pay rent at those rates.
4. In the final report of the new Settlement, dated 15th August 1914, it is stated that on the 18th February 1914, it was ordered that the operations should be carried out in accordance with the Regulations and not under the Bengal Tenancy Act. I gather from that, and from the course which these suits followed in the Courts below, that the rents of the tenants were not settled under the provisions of Chapter X of the Bengal Tenancy Act or under any other provisions of that Act.
5. The final report shows that the rate of rent was fixed under the Collector's orders at a uniform rate of Rs. 1-8 as per standard bigha for all lands comprised in the chur and that the revenue assessed was calculated on the aggregate rental so arrived at. It is not disputed that the defendants' rents, or the rents entered as payable by the defendants in the Settlement proceedings, were higher than the rents previously payable by them. The learned Vakil for the plaintiffs has been unable to tell us under what provisions of Regulation VII of 1822 it was open to the Revenue Authorities to impose this increase or enhancement of rent on the defendants.
6. No doubt, Section 9 of the Regulation lairs certain duties on a Collector making or revising a settlement of the land revenue. Inter alia, it requires that 'a record shall likewise be formed of the rates per bigha of each description of land or kind of produce demandable from the resident cultivators not claiming any transferable property in the soil whether possessing the right of hereditary occupancy or not' The section also says: 'The information collected on the above points shall be so arranged and recorded as to admit of an immediate reference hereafter by the Courts of Judicature, it being understood and declared that all decisions on the demands of the Zemindar shall hereafter be regulated by the rates of rent and modes of payment avowed and ascertained at the Settlement and recorded in the Collector's proceedings untied distinctly altered by mutual agreement or after full investigation in a regular suit'.
7. These provisions, however, do not appear to do more than enable the Collector to ascertain and record the rents actually payable at the time when a Settlement or re-Settelment is made.
8. If it was desired to enhance the rents of the tenants, proceedings should, as it would seem, have been taken by the Revenue Authorities under Part II of Chapter X of the Tenancy Act, or by the plaintiffs themselves under Section 52 or some other appropriate provision of that Article This view, I may add, accords with that of the Board of Revenue as expressed in Rule 67, at page 19, of the Bengal Survey and Settlement Manual, 1917. The rule states that, 'An officer making a Settelment under Regulation VII of 1822 has no power to settle rents or to record rents higher thin those hitherto paid, except by agreement with the parties subject to' Section 29 of the Bengal Tenancy Act in the case of raiyati lands, when that Act applies'.
9. In the circumstances, I am not satisfied that the rents recorded in the Settlement proceedings against the names of the defendants in those suits were validly settled rents which the defendants are bound to pay. As I understand, the Trial Court gave the plaintiffs a decree for arrears of rent at the rates admitted by the defendants, or at the original rates as the learned Munsif calls them.
10. The learned Vakil for the appellants has pressed for a remand of these casss to the Trial Court for the purpose of an enquiry being made whether proceedings were in fact taken under the Bengal Tenancy Act or not. To my mind, it will serve no useful purpose to direct a remand in face of the plain statement contained in the Settlement Report. These suits are in respect of rent for a period before the 31st March 1918, when the Revenue Settlement in question came to an end. It may be that other steps have been taken since and that the position is now different.
11. In the circumstances, I am of opinion that these appeals should ho, dismissed with costs in all the appeals except No. 554.
12. I agree.