1. The substantial question of law which calls for decision in this appeal is whether it is competent to a co-sharer landlord to make an application under Section 105 Clause (2) of the Bengal Tenancy Act for settlement of rent. The Settlement Officer as also the Special Judge has answered this question in the negative. There is no authority directly bearing upon the point and the determination of the question, therefore, must depend upon the construction of the language used by the legislature.
2. Sub-section 2 of Section 105 provides that when in any case in which a settlement of land revenue is not being made or is not about to be made, the Revenue Officer has recorded, in pursuance of Clause (7) of Section 102, that the occupant of any land claimed to be held rent free is not entitled to hold it without payment of rent and either the landlord or the occupant applies within two months from the date of the certificate of the final publication of the Record of Rights, under Section 103A Sub-section (2), for a settlement of rent, the Revenue Officer shall settle a fair and equitable rent for the land. The learned Vakil for the appellant suggests that this section is not controlled by Section 188 which provides that where two or more persons are joint landlords, anything which the landlord is, under the Act, required or authorised to do must be done either by both or all those persons acting together or by an agent authorized to act on behalf of both or all of them. The learned Vakil contends that Section 188 does not apply, because till rent has been assessed, the applicant under Section 105, Sub-section (2) is not a landlord at all. It is difficult to treat this argument seriously, for if the petitioner is not the landlord it is not competent to him to apply under Section 105, Sub-section (2). Besides an examination of clauses 3 and 4 of Section 3 of the Bengal Tenancy Act will show that a person may be a tenant of a landlord though he does not pay rent in respect of the land held by him. We must proceed, on the assumption, therefore, that the appellants before us were landlords within the meaning of Section 105 of the Bengal Tenancy Act. The question arises, whether the term 'landlord,' in Sub-section (2) of that section, means any one of several joint landlords or the entire body of landlords. Now, so far as Section 188 is concerned, it will be observed that the Legislature uses the expression landlord' to indicate the entire body of joint landlords and this is also borne out by the decision of this Court in the case of Jugobundhu Pattuok v. Jadu Ghose Alkushi 15 C. 47. It is suggested, however, that as Section 188 is limited in its application to matters which the landlord is required or authorized to do under the Bengal Tenancy Act, it has no application to Section 105, Sub-section 2, because that section does not authorise the landlord to apply for a settlement of fair and equitable rent. It is argued that the right of the landlord to apply for settlement of fair and equitable rent is a right 'which he enjoys under the general law independently of the provisions of the Bengal Tenancy Act, and that subsection 2 of Section 105 merely points oat the mode in which that right may be enforced. We are of opinion that there is no solid foundation for this line of reasoning by which the operation of Section 188 is sought to be excluded. Section 105, Sub-section 2, clearly authorizes the landlord to ask for settlement of rent in a particular contingency, namely, when it is recorded that the occupant of any particular parcel of land claims to hold rent-free land which he is not entitled to hold without payment of rent. It cannot be disputed that but for this section, the landlord would not be entitled to commence a proceeding for settlement of rent by an application to the Settlement authorities. In this view it is obvious that the entire body of landlords must join in an application under Section 105, Sub-section 2.
3. Stress, however, is laid upon Judicial decisions as authorities in support of the contrary view. The first of these is the case of Khondakar Ahdul Hamid v. Mohini Kant Saha 4 C.W.N. 508. A careful examination of the judgment, shows that the decision does not lend any assistance to the argument of the appellants. What has been ruled in that case is that if [section 52 of the Bengal Tenancy is applicable to a particular case, Section 188 bars the maintainability of the suit at the instance of a co-sharer landlord. In other words, where the defendant takes possession of land by gradual encroachment and the plaintiff as one of several joint landlords sues for assessment of rent on the assumption that there is a new holding and that a new rent has to be assessed, Section 52 has no application and Section 188 is no bar. On the other hand if such a landlord sues for rent not merely of the additional land found in possession of the tenant but in respect of the entire quantity of the land found in his possession including the land of his original holding, Section 52 is applicable and Section 188 presents a bar. The next case to which our attention is invited is that of Sher Bahadur Sahu v. M. H. Mackenzie 7 C.W.N. 400. In that case, the question arose, whether it was competent to one of several joint landlords to prefer objections under Section 106 of the Bengal Tenancy Act and it was held that such a landlord might have recourse to proceedings for disputing an entry in a Record-of-Rights under that section. Obviously this case is distinguishable from the one before us, on the ground that Section 106 does not require or authorize the landlord to take exception to an entry in a Record-of-Rights. But we are of opinion also that Section 106 itself furnishes ample evidence that it could never have been intended by the Legislature that an objection under that section should be jointly taken by all the landlords. Section 106 contemplates, among others, the case of the determination of a dispute between landlords of the same estate. If the landlords themselves are disputing, it would obviously he impossible for them to join together in taking an objection under Section 106. This case also, therefore, does not lend any support to the argument of the appellants. The last case upon which reliance is placed is that of Abdul Hakim v. Rajendra Narayan Rai (1909) 1 Ind. Cas. 312 : 13 C.W.N. 685. In this case the learned Judges appear to have doubted the earlier decision in Khondakar Abdul Hamid v. Mohini Kant Saha 4 C.W.N. 508 and at the same time to have followed it. So far as we can gather from the judgment, it is possible that the distinction to which we have referred between a suit for assessment of new rent in respect of new land only and a suit for rent of a consolidated holding comprising the original lands and the new lands was not brought to the notice of the Court. At any rate, the decision is not directly in point, and does not support the contention of the appellants.
4. There are, on the other hand, numerous cases in which it has been held that Section 188 disentitles one of several joint landlords from claiming various reliefs to which the landlord is entitled under the Bengal Tenancy Act. For instance, one of several joint landlords is not entitled to claim enhancement of rent nor to eject a tenant in accordance with the provisions of the Bengal Tenancy Act. He cannot apply for commutation or for a division and appraisement of rent payable in kind nor can he apply for issue of a notice and enter upon an abandoned holding. He cannot measure lands under the provisions of the Act, or take proceedings for distraint or apply to have the incidents of a tenancy determined. He could not, till recently, apply to have particulars of tenancies recorded under Section 103 which has now been amended and specifically entitles one of several joint landlords to take proceedings under that section. When we contrast the language of Section 103 as amended with that of Section 105, it becomes obvious that the Legislature could never have intended that one of several joint landlords should be entitled to take action under Section 105, Sub-section 2. The present application, therefore, has been rightly held to be not maintainable. It is hardly necessary to add that the circumstance that the co-sharers of the appellants have been joined as parties defendants to the proceedings does not make any difference, because, as was pointed out by this Court in the case of Moheeb Ali alias Dummer v. Ameer Rai 17 C. 538 if Section 188 is applicable all the landlords must join together and it is not a sufficient compliance with the provisions of that section to make the landlords, who refused to join, parties to the proceedings.
5. It is contended by the learned Vakil for the appellants that the view we take will cause great hardship to landlords.. This, however, is a circumstance which the Court can hardly be invited to take into consideration in construing a statute, the language of which is plain. We are not concerned with any hardship which might possibly result from, the administration of the law as it stands; that is entirely a matter for the Legislature to consider. But we are not satisfied that there is any hardship involved in the interpretation which we have put upon Section 105. It is always open to a landlord before he has recourse to settlement proceedings to have a partition with his recalcitrant co-sharers and if hetakes this initial precaution, no possible difficulty can subsequently arise.
6. It is finally suggested that the present case is not a case of co-sharer landlord at all and it is sought to be argued that the appellants and his co-sharers who are respondents are not joint landlords within the meaning of Section 188 of the Bengal Tenancy Act. Such a contention, however, so far as we can gather from the record does not appear to have been raised at any stage of the proceedings either before the Settlement Officer or the Special Judge. The point raised really involves a question of fact and it is not possible for us at this stage to entertain it.
7. The result is that the view taken by the Settlement Officer or the Special Judge cannot be successfully assailed. The appeal fails and is dismissed with costs. We assess the hearing foe at 2 gold mohurs.
8. It is conceded that Appeal No. 1699 of 1909 will be governed by this judgment although that case arose under Sub-section (1) of Section 105 of the Bengal Tenancy Act. That appeal also is dismissed with costs. We assess the hearing fee at 2 gold mohurs.