1. We think that the judgment of the Sobordinate Judge in this ease is clearly erroneous. The plaintiff is the purchaser of an estate at a sale for arrears of Government revenues and he has brought this present suit, under Section 37 of the Bengal Bent Act (Beng. Act VIII of 1869), in order to make a measurement of the estate so purchased.
2. A preliminary objection was taken which we may well dispose of in the first instance. It is contended that no appeal lies in a case of this sort. We think however, that the order, made by the District Judge under the provisions of Section 37 of the Bent Act is a decree within the meaning of the definition contained in the existing Code of Civil Procedure. 'Decree' means 'the formal expression of an adjudication upon any right claimed, or defence set up, in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the suit.' This is the portion of the definition essential to the present case. Now the right here claimed is the right to make a measurement of the estate, and it is quite clear that the Subordinate Judge has adjudicated upon the right. But then it is contended that this was an application, and not a suit. We think, however, that this objection is effectually disposed of By the language of the section itself, wherein we find the following words:-'The person claiming the right to measure such land may apply, to establish his right to measure such land, in the Court which would have jurisdiction in case such suit had been brought for the recovery of such land.' The Legislature here, although it uses the word 'apply' in the first portion of the passage cited, has deliberately termed this application a suit in the concluding words just quoted. We are then clearly of opinion that, having regard to the provisions of Section 540 of the Code of Civil Procedure, this appeal will lie.
3. The Subordinate Judge, dealing with the right of the plaintiff to make a measurement, says:-'With regard to the sixth and seventh issues, which ought to be tried together, I have to observe, that, from the plaint it appears, that the plaintiff intended to make a minute measurement of certain land contained in the zemindari purchased by him, but it is shown by the evidence adduced on the part of the defendants, that most of the lands are covered by the howladari and other intermediate tenures, which some of the defendants have in the said estate. Whether these intermediate tenures are valid or not, is a question which need not be enquired into in this suit; but it is clear that the ryots, at least most of the ryots, of the mehal hold their lands under the said intermediate holders and pay rents to them and not to the plaintiff. Besides, it is admitted on both sides, that the plaintiff, either before or after purchase, was never in possession of the estate by receiving rents from the ryots or from the intermediate tenants. Under such circumstances I am of opinion, that the plaintiff is not entitled to measure the lands, especially when he seeks to make a minute measurement of the mehal.' Now, in the first place, it is not clear to us that the plaintiff wants to make a minute measurement of the mehal, if by that the Subordinate Judge means such a measurement as is contemplated by Section 38 of the Bent. Law. It is not set out in so many words in the plaint under what Section the plaintiff has applied to the Court; but if we refer to the matter of the plaint, it is quite clear that this matter brings the case within Section 37, and that there is nothing in the plaint which affords the details contemplated by Section 38. Under these circumstances we assume that this is a case under Section 37, and we shall deal with it accordingly; and we may further say that the vakil for the appellant has assented to this view. Now Section 25, of the Bent Act is as follows:-'Every proprietor of an estate or tenure, or other person in receipt of the rents of an estate or tenure, has the right of making a general survey and measurement of the lands comprised in such estate or tenure or any part thereof, unless 'restrained from doing so by express engagement with the occupants of the lands.' Whether the words 'in receipt of the rents of an estate or tenure' are here to be construed as qualifying as well 'proprietor of an estate or tenure' as 'other person,' is a question as to which there has been some difference of opinion. In the case of Wise v. Bam Chunder By sack 7 W. R., 415, decided upon the corresponding Section in Beng. Act V of 1862, NORMAN and Seton-Karr, JJ., thought that they did. In the later case of Ranee Krishto Motee Debia v. Ram Nidhee Sircar 9 W. R., 331, the Court took a contrary view; and Seton-Karr, J., appears to have changed his opinion, and is at pains to show that the decision in the prior case proceeded on the ground that the plaintiff was seeking to establish a title which was disputed. If the words be taken as qualifying 'other person' only, it may be said, that the expression 'other person in receipt of the rents of an estate or tenure' implies that the person previously mentioned, i.R., the proprietor of an estate or tenure, is a 'person in receipt of the rents, etc.' This construction would show it to be the intention of the Legislature, that only a proprietor who is in actual possession by receipt of rent-a de facto and not merely a de jure proprietor-can measure; and this is in accordance with other cases; see Pureejan Khatoon v. Bykunt Chunder Ghuckerbutty 7 W. R., 96, Kalee Doss Nundee v. Ramguttee Dutt Sein 6 W. R., Act X Rul., 10, Durga Charan Mazumdar v. Mahomed Abbass Bhuya 6 B. L. R., 361. If, instead of 'other,' the word 'any' had been used, there might have been more room for doubt. It is to be observed that the words 'entitled to receive the rents of an estate or tenure' are to be found in Section 38, with which, as already pointed out, the present suit is not concerned; but do not occur in Section 37, which is as follows:-'If any person intending to measure any land which he has a right to measure, is opposed in making such measurement by the occupant of the land, etc.' Now, in order to ascertain what persons have a right to measure, we naturally refer to Section 25 already quoted. If that Section is to be construed as giving the right to measure to persons in receipt of the rents and to those only, it is difficult to account for the use of the words 'entitled to receive the rents' in Section 38, while they are omitted from Section 37. It could scarcely have been intended to use the term 'entitled' of a de jure title merely which was not also a de facto title. Such a construction would give a dangerous extension to Section 38. 'Entitled to receive the rents' probably means no more than 'in receipt of the rents;' and the natural construction to be put upon the omission of these words from Section 37 is, that the class of persons referred to in this Section, and who have a right to measure under Section 25, is not necessarily the same class as is mentioned in Section 38; in other words, that the proprietor of an estate or tenure has a right to measure under Section 37 without proving that he is in receipt of the rents. The case of Raj Chunder Boy v. Kishen Chunder 4 W. R., Act X Rul., 16 agrees with this view. There can be no doubt that the plaintiff in the present case is the proprietor of the estate, and in this view it is clear that, as a proprietor, he has the right to make a general survey and measurement of the land comprised in his estate. The defendants, in their written statement, do not deny the plaintiff's title; they say that they are not unwilling to pay him rent; and although he has not, since his purchase, actually received any rent from them, in all probability owing to this dispute about measurement, he is, nevertheless, the person admitted to be entitled to the receipt of the rents. There is nothing in the law which precludes the proprietor of an estate from making a general survey and mesurement such as is contemplated by Sections 25 and 37, merely because his estate happens to be sublet to a number of tenure-holders. The only excepted case is where there is a special agreement, and no such special agreement is pleaded in the present case. Under these circumstances, we think the judgment of the Subordinate Judge must be set aside, and this case must be remanded in order that he may proceed to do that which the law empowers him to do. The costs will be assessed on the same scale on which the lower Court has assessed them, and will abide the result.