1. This appeal arises out of a suit for a declaration that the plaintiff has a right to obtain a settlement of the lands in suit.
2. It appears that the lands were waste lands which were cleared of jungle and made fit for cultivation by the plaintiff. The plaintiff obtained settlement for one year at a time for two consecutive years. After the expiry of the period of settlement, both the plaintiff and the defendant applied for settlement. The plaintiff alleges that the settlement was at first made with him, but subsequently the Collector set aside that settlement and it was made with the defendant.
3. The Court of first instance found the facts in favour of the plaintiff and gave a decree in his favour. The lower Appellate Court did not go into the facts of the case, hut reversed the decree of the Court of first instance on the ground that the Civil Court had no power to go into the question.
4. The case is governed by the provisions of the Assam Land and Revenue Regulation.
5. The Regulation makes a distinction between the rights of a landholder which are stated in Section 9, and those of a settlement holder who is not a landholder. Section 11 lays down that a settlement holder, who is not a landholder, shall have no rights in the land held by him beyond such as are expressed in his settlement lease. Section 32 lays down:-- (1) The Settlement Officer shall offer the settlement to such persons (if any) as he finds to be in possession of the estate and to have a permanent, heritable and transferable right of use and occupancy in the same, or to be in possession as mortgages of persons having such a right.
(2) If the Settlement Officer finds no person in possession as aforesaid, it shall be in his discretion, subject to such rules as the Chief Commissioner may make under Section 12, to offer the settlement to any person he thinks fit.
6. Rule 57 of the rules made by the Chief Commissioner of Assam lays down:
In effecting re settlements of land previously held under leases, the term of which has expired, the Settlement Officer shall proceed according to Section 32 of the Land and Revenue Regulation.
If the person in possession is a landholder in respect of the land, settlement shall be offered to such person.
If the person in possession is not a landholder, the settlement may, subject to the provisions of Rule 63, be offered to any person whom the Settlement Officer thinks fit but he shall ordinarily give preference to the previous settlement holder. If no one is found in possession immediately under Government, the settlement may, subject to the provisions of Rule 63, be offered to the actual cultivator.
7. As the plaintiff was not a landholder, paragraph 3 of the rule applies to this ease, and the words he shall ordinarily give preference to the previous settlement holder' in that paragraph indicate that if there be reasons to take it out of the ordinary rule, the Revenue Authorities have a discretion to settle the land with a person who is not a previous settlement holder.
8. The learned Munsif in the present ease has found as follows:-- 'As the plaintiff has been held to be in possession of the land in suit since his application for the same, the settlement was first given to him and two Pattas Exhibit 1 and Exhibit 2 were rightly issued in his name. But the subsequent order of the Collector dated 26th March 1913 canceling the Patta issued in the name of the plaintiff cannot be justified on the provisions of Section 41 of the Assam Land and Revenue Regulation I of 1886'.
9. The learned Subordinate Judge, as stated before, has not gone into the facts of the ease. He was of opinion that the Civil Court had no power to decide whether the discretion of the Collector had been rightly exercised. No doubt the Collector has, under Rule 57, the power to settle the land with any person whom he thinks fit, but the game rule lays down that preference should ordinarily be given to the previous settlement holder and the question for decision, therefore, is, whether the Revenue Authorities found anything in the case which would take it out of Rule 57 of the rules. Neither of the Courts below has gone into the question whether the Collector has found anything for excluding the plaintiff from the settlement. We think that the Civil Court his power to decide whether there was compliance with the provisions of Rule 57 of the rules framed by the Chief Com missioner of Assam under Section 12 of the Regulation.
10. The only thing, however, which we think the Civil Court can see in a cage coming under paragraph 3 of Rule 57 is whether the rule has been complied with, and if there was no compliance with the rule the Court may pass a decree in such cases between the parties to the suit. It is not open to the Civil Court in such cases to go into the correctness or sufficiency of the reasons, and once it appears that the Revenue Authorities took into their consideration the fact that preference should ordinarily be given to the settlement holder, they have a discretion in the matter.' The reasons, moreover, for excluding the plaintiff might appear not only in the order, but in the office report or even in the petitions of the parties or other settlement papers.
11. As, however, the question has not been gone into by either of the Courts below, we think that the decrees of both the Courts below should be set aside and the case sent back to the Court of first instance so that the question may be inquired . into and the suit decided according to law. Coats to abide the result.