1. Second Appeal No. 1223 is by the landlord against the decision of the Special Judge modifying the decision of the Assistant Settlement Officer allowing an increase of rent to the appellant, but reducing the rate of increase allowed by the Assistant Settlement Officer. A preliminary objection has been taken by the defendants that no second appeal lies against the decision under Section 109-A, Clause 3, Ben. Ten. Act. The learned advocate for the appellant contends that as it is a decision not falling within the provisions of Section 105, Ben. Ten. Act, there is a second appeal or, in other words, his argument amounts to this that where various questions are raised in the Court below, namely, whether the tenancy is a permanent mokarari one or not, and whether the landlord is entitled to an increase of rent for an increase of area under Section 52, Ben. Ten. Act, there is a second appeal although the decision of the Special Judge professes to settle a fair and equitable rent. In support of this contention, reliance is placed on the Full Bench case of Jnanada Sundari Choudhurani v. Abdur Rahman  43 Cal. 603, where it was held by the Court that when in a proceeding under Section 105, Ben. Ten. Act, the Settlement Officer is asked to increase the rent under Sub-section 4 in accordance with the rule laid down in Section 52, Ben. Ten. Act, and the claim is refused on appeal to the Special Judge on the ground that the land of the tenant is not proved to be in excess of the area for which the rent has been previously paid, a second appeal is not barred by Section 109-A of that Act.
2. The learned advocate for the appellant asks for an extension of the rule laid down in that case. But when the facts and circumstances of the present case are looked into, the Full Bench case has no bearing upon the question in the present case. Here the settlement of rent was asked for lands which the tenants had encroached upon beyond the original area let out to him. The Assistant Settlement Officer fixed the rent on the basis of a certain area which, according to his view, was the excess land. On appeal, the Special Judge thought that the measurement of the area given in the kabuliyat was not at all accurate and he held that since the landlord has allowed a lax measurement by his own officers, it is not fair that the tenant should be compelled to pay at the kabuliyat rate for the area found by the scientific measurement of the cadastral survey. He, therefore, held that it would be just and proper to enhance the rent of the holding by three annas in the rupee. Although Section 52 is mentioned, this is not really, as the learned advocate for the appellant has conceded, a case falling within Section 52, Ben. Ten. Act, but an increase of rent according to the terms of the kabuliyat. The area has been estimated by the learned Judge and he has settled a fair rent. There is no question which can be raised in second appeal.
3. The appeal, therefore, fails and is dismissed with costs two gold mohurs.
4. With regard to second appeal No. 1224, the learned advocate for the appellant has very fairly conceded that he cannot urge anything against the preliminary objection taken on behalf of the respondent.
5. This appeal also is, therefore, dismissed with costs two gold mohurs.