1. These are appeals against the decision of the special Judge in proceedings under Sections 105 and 105A, Ben. Ten. Act, in which the learned Judge set aside the decision of the Assistant Settlement Officer. The landlord who is the appellant before us instituted a number of suits under Section 105, Ben. Ten. Act, for settlement of rent in respect of certain lands. At the same time he raised a special issue under Section 105A of the Act, upon which he paid court-fees, as to the correctness of certain entries in the settlement record. After the institution of the Section 105 proceedings the landlord stated in a petition that he would be satisfied if the issue under Section 105A only were decided treating the proceedings as proceedings under S.106 leaving the question of enhancement: of rent open for the present. On that petition the Settlement Officer made an order to the effect that he did not think it necessary to try the case under Section 106 of the Act as the special issue could be decided under Section 105A. Subsequently the landlord filed another petition stating that during the hearing the defendants had raised a plea that the Court was not competent to decide the question under Section 105A without also deciding the question of enhancement and that in view of that position the plaintiff did not give up his right to have the rent enhanced and desired that the question of enhancement should be gone into if the Court held that it could not be postponed to some future date. The ultimate result however was that the Settlement Officer decided the question under Section 105A of the Act without considering the question of settlement of fair rent.
2. On appeal the learned special Judge has held that as the landlord had not pressed his substantive application under Section 105 he-could not claim to have the special issue raised under Section 105A adjudicated on and in this view of the matter allowed the appeals and set aside the decision of the Assistant Settlement Officer. Now the question of law for our decision in these cases is whether when an application under Section 105, Ben. Ten. Act, is for any reason not proceeded with the Court has still jurisdiction to hear and decide a special issue raised under Section 105A of the Act. It has been strenuously con-tended on behalf of the respondents that a special issue under Section 105A can only arise in proceedings instituted under Section 105 and that where for any reason the settlement of fair and equitable rent is not made and the proceedings in so far as that matter is concerned are abandoned, there can be no adjudication as to the correctness or otherwise of the Record of Rights under Section 105A of the Act. In. this connexion our attention has been drawn to two reported and two unreported cases and it must be said at once that the unreported cases are in conflict with the reported decisions. Only one of the cases however is a decision of a Divisional Bench and in that case, Hrishi Kesh Chatterjee v. Naba Krishna Roy : AIR1934Cal122 , it has been laid down that when an application by the landlord under Section 105 is dismissed for default in a proceeding in which the tenant has raised the question under Section 105A the tenant's application must nevertheless be proceeded with and the issue raised thereby determined.
3. The same view was taken in the reported (case in Satish Chandra v. Nabakrishna Roy : AIR1933Cal704 which was a decision by a single Judge. We are inclined respectfully to agree with these decisions and all the more so because in one essential particular the facts of the present cases lend even greater support to the view taken in them. In both the reported cases it was held that the plea of the tenant under Section 105A raised by way of defence in a proceeding under Section 105 brought by the landlord must be adjudicated on in spite of the withdrawal of the landlord's original petition which conferred jurisdiction on the Settlement Officer to enquire into the matter. In the present cases the application under Section 105A was made not by the tenants by way of defence but by the landlord himself by way of claim, or to put the matter in another way as one of the reliefs sought in his plaint. It would seem illogical to hold that where a plaintiff brings a suit and subsequently withdraws one portion of his claim the Court should be debarred from adjudicating on the remainder of that claim. In this view of the matter we think on a full consideration of the materials and the law, placed before us by the learned advocates that we are bound to hold that the petitions previously referred to with regard to the original claim for settlement of fair rent, even if they do amount to withdrawal by the plaintiff of his applications under Section 105, did not debar the Court below from proceeding to enquire into and adjudicating on the question raised under Section 105A of the Act. In this view of the matter, these appeals must be allowed, the decision of the learned special Judge set aside and the cases remanded to him for disposal in accordance with law. The appellant will have one set of costs in these appeals. A consolidated hearing-fee of Rs. 42 is assessed for these appeals.
4. I agree.