1. This appeal is by the landlord who made an application under Section 105 of the Bengal Tenancy Act for a settlement of rent after the final publication of the Record of Rights.
2. The respondent who holds the land described in Khatian No. 43 said among other things that he held the land at a lump rental, and that he had been paying the same rent for upwards of twenty years and that he was, therefore, entitled to have his rent regarded as fixed.
3. The Courts below are agreed in finding that the respondent's allegations were proved, namely that he did hold the land at a lump rental, and that be bad paid the same rent for upwards of twenty years immediately before the institution of the proceedings, and he was, therefore, entitled to the benefit of the presumption given by Section 50 (2) of the Tenancy Act.
4. The appellant admits that he cannot challenge these findings in second appeal and he limits his appeal to the ordering portion of the judgment of the first Court, which was confirmed by the lower Appellate Court.
5. The Assistant Settlement Officer passed this order--'Rent in respect to Khatian No. 43 is held to be at a fixed lump rental, and as such note should be made in the Record of Rights as Mokta Mokarari in place of the status of occupancy recorded for him.'
6. It is urged on behalf of the landlord that the Court erred, first, in deciding the question of defendant's status, and, secondly, in ordering a note to be made in the Record of Rights.
7. With regard to the matter of defendant's status it was pointed out that the tenant had not made any application for correction of the entry under Section 106 of the Act, that he had not explicitly stated that he was a raiyat holding at fixed rates and not an occupancy raiyat, and that no formal issue as to his status had been framed.
8. As for the defendants' written statement, paragraph 10 sets out his case quite clearly, for the dosing words are: according to the provisions of the law it (the rent) is not liable to increase and cannot be (increased): it is not subject to variation; according to law it is 'fixed' (using the English word) and it is not liable to increase.' The only criticism that can be levelled at this written statement is that he does not say 'I am not merely a Sthitiban raiyat as I am described in the record, but I am a raiyat holding at a fixed rent.' but in substance the reiterated statement that the rent is not liable to increase amounts to that.
9. It is true that no formal issue was framed as to the status of the tenant, but it is clear from the evidence which was tendered that both sides were aware of the fact that the question of status had been raised and that the Court could not deal with the landlord's application without adjudicating on that question. The question was of the kind descrided in Clause (e) of Section 106 S of the Tenancy Act, and it was obligatory on the Settlement Officer to try and decide it. The argument that, because there was no formal issue framed as to the tenant's status, there was no 'such issue' for the Court to decide, is unsound, because it rests upon the assumption that the word issue in Section 105A cannot mean more than an issue framed and recorded according to law. The words of Section 105A, however, are; 'Where any of the following issues arise' and in the language of the Civil Procedure Code; 'Issues arise when a material proposition of fact or low is affirmed by the one party and denied by the other.'
10. The third ground taken. Namely, that the tenant had not applied under Section 106 of the Tenancy Act to have the entry because it is clear that the object of Section 105A is to give the defendant in proceedings under Section 105 the right to raise questions which should properly form the subject matter of proceedings under Section 106.
11. The second branch of the landlord's argument is that in any case the Courts below were wrong in ordering a note to be made in the Record of Rights; but to this contention Clause (2) of Section 107 gives an overwhelming answer.
12. The appeal fails and must be dismissed with costs.