Ewart Greaves, C.J.
1. This is an appeal against a decision of the, Special Judge of Noakhali confirming a decision of the Assistant Settlement Officer of Feni. The appeal arises out of a proceeding by the landlord under Section 105 of the Bengal Tenancy Act to enhance the rent of certain holdings after the final publication of the Record of Rights. The material facts and dates are as follows: The Record was finally published on the 31st March, 1917. The application for enhancement was made by the landlord on the 21st May in the same year, that is to say, within the period of two months prescribed by Section 105(1). On the 8th August, 1917, some of the tenants against whom the enhancement was sought filed written statements in which they alleged that some of the recorded tenants were dead. Thereupon on the 15th August, 1917, the landlord applied for substitution of the names of the heirs of the tenants who had died. This application was made as will appear from the dates more than two months after the final publication of the Record of Rights. On the 4th September, 1917, the Assistant Settlement Officer delivered his decision disposing both of the application for substitution and of the original application for enhancement of rent, and he dismissed both the application for substitution and the original application for enhancement on the ground that the application, had not been made so far as the heirs of the deceased tenants were concerned within two months of the final publication of the Record of Rights. As 1 have already indicated there was an appeal to the Special Judge against, the decision of the Assistant Settlement Officer and he on the 15th September, 1919, dismissed the appeal affirming the decision of the Assistant Settlement Officer and upon the grounds upon which that decision was given. Hence this second appeal to this Court.
2. We are told that the landlord knew of the deaths, at any rate of some of. the tenants within, two months of the final publication of the Record of Rights. Section 105(1) of the Bengal Tenancy Act provides, When, in any case in which a settlement of land revenue is not being made or is not about to be made, either the landlord or the tenant applies, within two months from the date of the certificate of the final publication of the Record of Right under Section 103A, Sub-section (2), for a settlement, of rent, the Revenue Officer shall settle a fair and equitable rent in respect of the land. Sub-section 5 provides that the Revenue Officer may in any case under this section propose to the parties such rents as he considers fair and equitable. Certain rules have been framed for the settlement of fair rent under the provision of Sections 105 and 105A. They are to be found in Appendix I of the Bengal Tenancy Act. Rule 63(1) provides that when the landlord or tenant applies for settlement of fair rent he shall be considered as plaintiff and the opposite party as defendant and that the proceeding shall be dealt with as suit, and the Revenue Officer is to adopt as far as it is applicable the procedure laid down in the C.P.C. for the trial of suits. Rule 3 provides that when the landlord or tenant applies for the settlement of fair rent notice shall be served on every person interested in the application together with a copy of the application or extract there from so far as the application concerns such, persons. Now the view of the Assistant Settlement Officer and of the Special Judge, was that the proceedings under s, 105 were from their commencement suit3 and that inasmuch as certain dead persons were placed in the category of defendants no substitution could be effected as more than two months had elapsed since the final publication of the Record of Rights and that accordingly the application for enhancement must be dismissed as some of the joint tenants were not on the record.
3. No doubt this is the correct view if the proceedings under the section are to be treated as from their initiation as suits. But I do not think a proper reading of the provisions of Section 105 makes this necessary and I do not think that having regard to the difficulties which would arise if this reading of the section were adopted we ought to adopt this view unless of course we are compelled to do so by the words of the section. Now Section 105(1) as I have already indicated speaks of an application, and in my view when the application is originally made it is not necessary for the landlord or the tenant in making the application under the section to name any person. All that is necessary 1 think is to indicate the holdings in the record in respect of which the settlement of fair and equitable rent is sought. No doubt in practice when the landlord applies the recorded tenants are made parties and there seems no objection to this practice, but nonetheless I think the application under Sub-section (1) of Section 105 is merely an application to which no tenants, if the application is by the landlord need be made parties. It is only I think after the application has been made, which of course must be made within two months that the proceeding becomes a. But or in the nature of a suit and the provisions of the C.P.C. apply thereto. If this reading of Sub-section (1) of Section 105 is taken then none of the difficulties which faced the. Assistant Settlement Officer and the Special Judge arise. The proceedings were instituted within the statutory period of two months provided by Section 105(1) and Subsequently, of course, it is necessary that any persons interested should be served with notice of the proceedings in order that they might be heard when the Revenue Officer deals with, the application. If some of the persons served are dead then of course fresh notices can be served on their heirs when they are ascertained, and no question of limitation will arise.
4. It is, however, objected to this reading of the section that it may lead to very considerable delays and that once the landlord has made his application within two months, years may elapse before the proceedings can really be brought to a conclusion and finally dealt with. But I do not apprehend any difficulty on that score, the person who makes the application whether he is the, landlord or the tenant (and I think the reading of Section 105(1) which 1 have indicated would apply equally to landlord and tenant). The person making the application is interested in getting a fair and equitable rent fixed as speedily as possible. So that it is not likely that there will be the delay which the learned Vakil who appeared for the respondents apprehends.
5. There is no doubt that the provisions of Rule 63(1) do present some difficulty and I do not think that the rule is happily worded having regard to the construction of Section 105(1) which I have indicated. But after all the rule cannot govern the true construction of the Act, and if the rule is not appositely worded then it is the rule that must give way when the true construction of Section 105(1) is declared by this Court. But I do not know that it is necessary to say that Rule 63(1) really creates any insuperable difficulty, for it may well be possible &o; read that rule as applying when the proceedings have reached the suit stage which I have previously indicated, that is to say, subsequent to the making of the application indicated in Section 105(1). The view that we take of the construction of Section 105(1) is fortified when one turns to Section 106 of the Bengal Tenancy Act. There-the proceedings are spoken of as a suit and the proceedings there are a suit from the commencement. But one cannot help contrasting the use of the word suit in Section 106 with the use of the word 'applies' in Section 105(1) and clearly I think a distinction must be drawn between the procedure to be adopted under Section 105(1) and the procedure to be followed in proceedings under Section 106. Lastly it is necessary to refer to a case with which we were pressed in argument on behalf of the respondents, namely, the case of Sati Prosad Gorga v. Sanatan Dhara 61 Ind. Cas. 549 : C.W.N. 38. There the application for enhancement was made by some of the landlords. An infant son who was born five days before the original application not being added as a party, the landlords were governed by the Law of Mitakshara, and Section 188 of the Bengal Tenancy Act provides that an application under Section 105 must be made by the whole body of the landlords. The application, therefore, not having been made by the whole body of landlords under Section 105 was clearly not maintainable, and as is pointed out the landlords were relegated to a civil suit to obtain enhancement of the rent. But I do not think that that case has any application to the appeal which is now before us or creates any difficulty in A applying the reading of Section 105(1) which I would apply here.
6. A similar question to the one now before us arose for decision before a Bench consisting of Mr. Justice Walmsley and Mr. Justice Suhrawardy in Second Appeals Nos. 89, 100, and 105 to 115 of 1920. Divergent views were expressed by the two Judges who heard those appeals and the result ,of our judgment is that we agree with the view expressed on this matter by Mr. Justice Walmsley although not perhaps with the entire reasoning upon which the judgment is based.
7. In the result, therefore, we think that both the Courts below were wrong in their decision for the reasons which I have indicated, and the appeal must succeed and the proceeding will go back to the Assistant Settlement Officer in order that it may be determined on its merits after notices have been given to the heirs of the recorded tenants who were dead at the time the application was made or who have died subsequently.
8. The appellant will get his costs in this Court. The costs in the lower Courts will abide the result. The hearing fee in this Court is assessed at two gold mohurs.
9. I agree.
10. I agree.