1. The facts of the two suits which have resulted in these appeals are the following: One of these suits relates to a jama which used to be held by one Goloke, mistri, and the other to a jama which one Sridam Mandal held, under two persons named Chandramani Majhi and one Asanullah Gain who were temporary settlement holders from Government. The interests of Chandramani Majhi and Asanulla Gain have eventually passed to two persons, Charu Chandra Gbose and Purna Chandra Ghose. Goloke's rent was Rs. 29-1-4 and Sridam's Rs. 55-12-4. In 1920 B.S. Goloke and Sridam sold their respective jamas to Baroda Kanta Ghose, father of the aforesaid two persons Charu and Purna, when he was alive, and purported to execute kabuliyats in favour of Baroda at rentals of Rs. 38-2-5 and Rs. 70-15-0 respectively for the two jamas, and promising that if under any future settlement from Government there be any increment of the rent payable by the lessor they would pay the same by executing a fresh kabuliyat, and if there be a decrease they would get a corresponding diminution. By the will left by Baroda the two holdings have devolved on his two daughters-in-law, namely the wives of Charu and Purna. These two ladies are the plaintiffs in the present suits. Their present position is that their husbands are temporary settlement holders under the Government, that they themselves hold under their husbands and that the defendants are tenants under them.
2. In the Petty Settlement of 1908 the rents of the defendants in respect of the two jamas of Rs. 29-14-6 and Rs. 55-12-4, which were enhanced by the kabuliyats of 1290 B.S. to Rs. 38-2-5 and Rs. 70-15-0 as already stated, were recorded as Rs. 34-7-2 and Rs. 63-15-3 respectively; and in the more recent District Settlement of 1925 they have been further enhanced to Rs. 40-2-0 and Rs. 69-1-0. The plaintiffs have sued for rents as recorded in these settlements plus a munafa of Rs. 8-2-9 for Goloke's jama and of Rs. 15-2-8 for Sridam's jama. Their case is that the enhancement of rent in the kabuliyats was on the basis of such munafas being reserved for Baroda and consequently for themselves, and that the stipulation in the kabuliyats, to which reference has already been made, makes that clear. In neither of the settlements the rights of Baroda or of the plaintiffs were recorded, but the defendants have been recorded as holding directly under the temporary settlement holders for the time-being. The defendants allege that the kabuliyats of 1290 B.S. were not acted upon and that rents were never paid according to their terms. They have not, however, challenged the kabalas in favour of Baroda. They say that they are liable to pay only such rents as are entered in the settlement khatians, and to such persons as are the temporary settlement holders.
3. The Munsif found that when Charu and Purna became temporary settlement holders under the purchase which they made from the previous temporary settlement holders, they managed the properties on behalf of their respective wives and that the collection papers produced by them showed that they separately realised the munafas payable to their wives under the terms of the kabuliyats aforesaid and kept separate accounts of such realizations. It was contended before the learned Munsif on behalf of the defence that as the plaintiffs did not institute any suit Under Section 104-H, Ben. Ten. Act, within time, they were incompetent to claim rent on the basis of anything else than what was entered in the Record-of-Rights. But he held that, as in the present cases the rights of the plaintiffs were not recorded in the khatian, they were competent to enforce them in the present suits by showing that the Record of Rights was wrong, even though they may not have instituted suits contemplated by that section. The Subordinate Judge agreed with the Munsif in holding that the intermediate interest created by the kabuliyat of 1290 B.S. did in fact exist and that under those kabuliyats the relationship of landlord and tenant must be held to exist between the plaintiffs and the defendants. He held however that the rents having been settled Under Section 104-J, Ben. Ten. Act, the entry in the Record-of-Rights is final and the plaintiffs cannot claim any higher amount. He held also that before the plaintiffs can claim munafa they must show what the rent payable by them to their own landlords was, but of this there was no evidence and that, in fact, there was no record made in respect of the plaintiffs' tenancy under the temporary settlement holders. He gave the plaintiffs decrees at the rates entered in the settlement khatians and dismissed their claim as regards munafas.
4. On behalf of the plaintiffs, as appellants, it has been contended that Section 104-J doss not operate as a bar because Section 104-H has no application to cases of the present nature. With this contention I agree. The section speaks of a person aggrieved by an entry in respect of a tenancy which has been entered in the settlement rent roll prepared Under Sections. 104-A to 104-E, and specifies the suits which have to be brought in such circumstances. It has no application to a case of an entire omission of a tenancy from such a rent roll, as is the case here. The learned Judge, in my judgment, was in error in supposing that Section 104-J is a bar: the rent that is settled and stated in the rent roll is the rent of a tenancy as between the temporary settlement holders and the defendants, and has nothing to do with the rent of the alleged tenancy on the basis of the kabuliyats of 1290 B.S. as between Baroda and the defendants. Notwithstanding that this tenancy has not found a place in the rent roll it is open to the plaintiffs to show that such a tenancy in fact exists, and on its basis to claim rent from the defendants who are in occupation of the lands of the tenancy. It is obvious that if the plaintiffs desired to institute a suit to have their rights entered in the rent roll, such a suit would not fall within any of the descriptions of suits detailed in Clauses (a) to (h), Sub-section (3), Section 104-H. To this extent I must differ from the views which the Subordinate Judge has expressed.
5. The next question that arises is whether the plaintiffs are entitled to the munafas claimed. For this the plaintiffs will have to show that they are entitled to the amounts of Rs. 8 odd and Rs. 15 odd per year under the terms of the kabuliyats. The kabuliyats, however, do not mention these amounts. The plaintiffs' case is that the enhancement that was made in respect of the rents in 1290 B.S.was made on the basis of these munafas. This part of the case may be taken to have been established, because though there is no direct evidence of a contract for payment of such specific amounts as munafas in respect of the two holdings the realization of such amounts as munafas which has been proved by the plaintiffs' collection papers for a series of years may be taken as indirectly supporting such a conclusion. But I am unable to see how such a contract can now be given effect to. The contract, as I gather from the plaints, was that Rs. 8 odd and Rupees 15 odd would remain constant as munafa for the lessor, so that the total rent which the lessee will have to pay will be the amount of rent payable by the lessor to his own landlord plus the said munafa. Such a contract is easily understandable, But here the plaintiffs' tenancy is not recorded in the Record-of-Eights, and nobody can guess what rent the plaintiffs have to pay for it to their own landlords.
6. There is no evidence of any rents payable by the plaintiffs to their own landlords (their husbands) for the years in suit. In fact by omitting to have their own tenancies recorded they have destroyed the one means that they had of enforcing the contract. They cannot say that the rents of the defendants such as are entered in the rent roll as in respect of tenancies which the defendants hold under the temporary settlement holder should be taken as rents payable by themselves to the latter. Such a supposition is impossible. I think, therefore, that the plaintiffs claim to the munafas must fail. The decrees which the plaintiffs have obtained on the basis of the rentals stated in the rent roll are perhaps justified on the footing that the defendants' tenancise have been correctly recorded therein except as regards the names of the defendants' landlords. But I need not consider the question of propriety of these decrees any further as there is no objection to that effect on behalf of the defendants. The appeals must be dismissed with costs.