1. This second appeal arises out of a suit for rent brought by the plaintiffs, the respondents before us, against the defendant, who is the appellant. The plaintiffs are the holders of lands in a Government khas mehal in which the land in suit is included. Upon the judgment of the Court below: it appears that by an express contract between the parties the defendant held this land at an annual rental of Rs. 81-6-0, on condition that the landlord would be entitled to enhance the rent should it be found on measurement that the area occupied by the defendant was more than what was stated in the contract.
2. It appears further that a Record of Rights . was prepared in respect of this khas mehal under Chapter X of the Bengal, Tenancy Act, The Record of Rights was finally published in the year 1910, The area of the holding as therein entered is larger than the area stated in the contract but the amount of rent entered is the same as the rent Stated in the contract. There is no mention of the circumstances in which the rent was liable to enhancement. The landlord, the plaintiff, had himself measured the holding before the Record of Rights was published. The two measurements--that made by the landlord himself and that made by the Revenue Officer--are practically identical. In a suit for rent instituted in the year 1908, the landlord claimed an increased rent upon the footing of the actual area of which the tenant was found to be in possession. The suit was compromised and the petition of compromise filed by the parties is on the record. Its terms are not very clear and regard being had to the view we take of this case it is not necessary for us to examine its meaning closely,
3. The real question that arises is, whether the rent entered in the Record of Rights was the rent settled under Chapter X of the Bengal Tenancy Act, and, if so, whether section 113 of the Act precludes the plaintiff from obtaining in the present suit a decree for rent at a higher rate than that entered in the Record of Rights.
4. Section 113 runs as follows : 'When the rent of a tenure or holding is settled under this chapter, it shall not, except on the ground of a landlord's improvement or of a subsequent alteration, in the area of the tenure or holding, be enhanced in the case of a tenure or an occupancy holding or the holding of an under-raiyat having occupancy rights, for fifteen years, and, in the case of a non-occupancy holding or the holding of an under-raiyat not having occupancy rights, for five years.' The section, therefore, applies to rents settled under Chapter X. Under that Chapter rent may be settled in accordance with the provisions contained in sections 104-104-J, or rent may be settled under Section 105 or under Section 112. When rent is finally settled under one or other of those provisions, it cannot be enhanced (except on grounds which do not apply to the present case) within the periods mentioned in section 113.
5. The inference to be drawn from the way in which the ease has been dealt with by both Courts below is probably that the rent entered in the Record of Rights was the rent settled under one or other of the provisions to which we have already referred.
6. The learned Munsif states in his judgment that ''the increase in rent is claimed by plaintiff on the ground of increase in area.' That is one of the grounds mentioned in Section 113. The learned Munsif refused to increase the rent on that ground, because in his own words 'the quantity of land found on measurement in the Record of Right proceeding is very nearly the same as stated by the plaintiff.' In other words, the Munsif held that there was no substantial alteration in the area of the holding subsequent to the date of the Record of Rights. The Munsif, therefore, rejected the claim for an enhanced rent and made a decree for the amount due according to the entry in the Record of Rights. In the lower Appellate Court the learned Subordinate Judge agreed with the Munsif on the question of fact as to, the area of the holding. But he seems to have held that, inspire of Section 113 of the Bengal Tenancy Act, the plaintiff was entitled to recover rent at an enhanced rate under the terms of his lease, and in this connection he referred to the consent decree in the previous rent suit which has already been mentioned. He did not notice that that decree bears date the year 1908, The decree was prior to the Record of Rights and can afford no ground for increasing a rent subsequently settled under Chapter X of the Bengal Tenancy Act. The learned Subordinate Judge's reference, however, to Section 113 is an indication that the rent was settled under Chapter X of the Act in the course of the Settlement proceedings. Unless that was the case Section 113 would not have stood in the plaintiffs' way and the Subordinate Judge would have been under no necessity to deal with the section or to attempt to explain it away. The section, of course, is not applicable to a mere entry of an existing rent in the Record of Rights. The Subordinate Judge could hardly have thought that the section could have any application to such an entry. Nevertheless as the materials before us do not show definitely that the rent was settled by proceedings taken under the chapter, the order we are about to make will be made in the alternative.
7. We cannot accept the view of the learned Subordinate Judge in regard to the effect of Section 113, if he was referring to the effect of the section upon a settled rent. He appears to have thought that its provisions were in some way inconsistent with section 103B of the Bengal Tenancy Act, As an escape from this supposed difficulty, he apparently came to the conclusion that section 113 was only applicable to cases where there was no dispute between the parties as to the correctness of a rent settled. The words of the section admit of no such limitation. There is really no inconsistency between Section 103B and Section 113, and if there were any inconsistency between them, the general provisions of Section 103B would have to give way to the particular provisions contained in section 113. Section 103B applies to all entries in the Record of Bights and creates a presumption of correctness in regard to them. Section 113 applies in those cases where the rent of a tenure or holding has been actually settled under the Chapter. There is no hardship in this, because rents are settled by the Revenue Officer after full enquiry and by proceedings which are judicial or quasi- judicial in their character and there are provisions which, subject to the conditions specified, enable his decision to be challenged by appeal to higher Revenue Authority or by the institution of a suit in the Civil Courts.
8. In the case, for instance, of rents settled under Sections 104 to 104J there are the provisions contained in Sections 104G and 104H, But when a rent has been settled under that part of Chapter X, then Section 104J lays down that 'subject to the provisions of Section 104H, all rents settled under Sections 104A to 104F and entered in a Record of Rights finally published under Section 103A, or settled under Section 104J, shall be deemed...to be fair and equitable rents within the meaning of this Act.' This enactment has also to be considered in connection with Section 113 and it has been held that Section 103B does not operate to modify its effect [Ambica Charan Chakravarti v. Joy Chandra. Ghosh 4 Ind. Cas. 470; 13 C. W. N. 210].
9. In the case of fair rent settled under Section 105, there are provisions (Section 109A) which enable an aggrieved party to appeal, in the first place, to a Special Judge and then in some case a to come up to the High Court in Second appeal. But subject to those provisions Section 109 declares that 'a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Sections 105 to 108 (both inclusive).' Section 109, therefore, has also to be considered in connection with Section 113.
10. The settlement of rent under Section 112 is governed by provisions contained, in Sections 104 to 104J and does not separate notice.
11. A consideration of Chapter X as a whole shows that the effect of the plain language of Section 113 is not in any way controlled or cut down by anything in Section 103B. The order we make is as follows: The decree of the lower Appellate Court is set aside,
12. The case will be remitted to that Court to ascertain whether the rent in question has or has not been settled under Chapter X of the Act. For that purpose fresh evidence may be admitted if necessary. If the rent has been settled under Chapter X of the Bengal Tenancy Act, a fresh decree will be made dismissing the appeal from the Munsif's decree. The effect will be Jo restore the judgment and decree of the Munsif. If, on the other hand, it be found that the rent has not been settled under Chapter X, then the learned Subordinate Judge will make a fresh decree in the same terms as to the rent payable as his present decree.
13. Costs of this appeal will abide the result.