Nasim Ali, J.
1. The appellant in these three appeals filed three applications under Section 105, Ben. Ten. Act, before the Revenue Officer of Rampurhat in the district of Birbhum for settlement of fair and equitable rent of certain holdings. Before the Revenue Officer she raised the following issues under Section 105-A: (1) Are the holdings in dispute, though recorded as Mokrari in the record of rights, occupancy holdings? (2) Are the rents recorded in the record of rights the existing rent of the holdings? (3) Is she entitled to get additional rent for excess area? She paid Court fee of 12 annas for each of the holdings mentioned in her application and Rs. 20 for each of the three applications. The Revenue Officer decided against her. She filed three appeals before the Special Judge of Birbhum and paid the same Court-fee on the memoranda of appeals as she did on her applications before the Revenue Officer. The learned Judge treated the appeals as appeals arising out of suits under Section 106, Ben. Ten. Act, and demanded additional Court-fees. The appellant having failed to comply with the order of the Judge her appeals have been dismissed. She appeals to this Court. In her Memorandum of appeals to this Court she has paid the same Court.fees as before the Special Judge.
2. During the pendency of the appeal to this Court respondent 9 in Section A. No 1069, respondents 17, 18, 45, 48, 72 and 73 in Section A. No. 1070, respondents 10, 13, 24, 41, 44, 59, 62, 66 and 94 in Section A. No, 1071 died. Their heirs were not substituted within the time prescribed by law. The appellant's claim for fair rent in respect of the following Khatians is therefore dismissed.
Appeal No. Khatian No.S. A. No. 1069 of 1932 114S. A. No. 1070 of 1932 15 1866133 S. A. No. 1071 of 1932 2331 353971191202
3. A preliminary objection has been taken to the hearing of these appeals on behalf of the respondents on the ground that the order of the learned Special Judge though in form an order-of dismissal, is in substance an order of rejection of memoran dum of appeals, and no appeal lies against such an order. In order to determine whether an order dismisses an appeal or simply rejects it, the substance and not the form of the order is to be considered. The order of the Special Judge is not accurately expressed because it states that the appeals are dismissed and not that the memorandum of appeals are rejected. It is however clear that the intention of the Judge was to reject the memorandum as they were not properly stamped. The learned advocate for the appellant however contends that an appeal lies against an order rejecting a memorandum. Now an appeal to this Court against the decision of the Special Judge lies under Section 109-A (now 115-C), Clause (3), Ben. Ten. Act. That clause lays down that such an appeal is subject to the provisions of Order 42, Civil P. C. Order 42 of the Code lays down that the rules of Order 41 shall apply so far as may be to appeals from appellate decrees. The order appealed against does not come under Rule 3, Order 41 which provides for rejection of memorandum of appeal. But by Section 107, Clause (2) of the Code the appellate Court has the same powers as the Court of original jurisdiction in respect of suits instituted therein. By Rule 11, Order 7 of the Code, the trial Court has been empowered to reject a plaint if the plaint is not properly stamped and the plaintiff being required to supply the requisite stamps fails to do so. The Special Judge therefore had power to reject the memorandum of appeal for failure of the appellant to supply the requisite stamps. The question then is whether the order is appealable. In Jnanada Sundari Shah v. Madhab Chandra 1932 Cal 482, Suhrawardy, J. observed:
Section 107 (2) invests an appellate Court with the same powers as are conferred on a Court of original jurisdiction. It does not purport to give the order passed by an appellate Court the same effect as an order passed by an original Court of like nature. Section 2 expressly says that 'decree' shall be deemed to include the rejection of a plaint. If it was the intention of the Legislature to include within the definition of `decree' an order rejecting a memorandum of appeal it would have expressly said so.
4. With these observations I respectfully agree. Section 109 (3), Ben. Ten. Act makes the provision of Order 42 applicable to the appeals to this Court. By implication the provisions of Order 41 are attracted. Even if the provisions of Order 43 also are attracted, an order rejecting a memorandum of appeal is not appealable under its provisions. As at present advised I am inclined to think that an appeal arising out of a proceeding under Section 105 against the decision of the Special Judge lies to this Court when there has been an investigation and determination by him of any of the questions under Section 105-A.
5. I am therefore of opinion that no appeal lies to this Court against the order of the special Judge. But in view of the facts and circumstances of these cases we treat the memorandum of appeals to this Court so far as they relate to the tenancies in respect of which the appeals have not abated as petitions for revision under Section 115, Civil P. C. The point for determination in these cases is what was the court-fee payable on memorandum of appeals before the Special Judge in respect of the Khatians other than those in respect of which the claim for additional rent has been dismissed by us. It was not disputed at the bar that the amount of court-fee payable for the petitions before the revenue officer is governed by the notification under Section 105 (3), Ben. Ten. Act. It is however argued by the learned advocate for the appellant that the notification does not apply to appeals and that for determining the court-fee payable we must look to the Court-fees Act. It is also argued that the memorandum of appeal before the Special Judge do not come under Article 1, Schedule 1, Court-fees Act and that they came under Article 1, Clause (b), Schedule 2 of the same Act. In support of this contention the learned Advocate relied upon a Full Bench decision of this Court: Upadhya Thakur v. Persidh Singh (1896) 23 Cal 723 (F B). This ruling is of the year 1896. In that case it was held that no memorandum of appeal was required before the Special Judge in an appeal arising out of a proceeding for settlement of rent under Section 104 (2), Ch. 10, Ben. Ten. Act of 1885 as it stood then inasmuch as the prooeeding under that section was not a suit. The reasons given for this decision are these:
6. (1) The proceeding was instituted by an application and not by a plaint. (2) The application was not subject to an ad valorem court-fee. (3) The provisions of Section 107, (old Act) did not prescribe that the decision of the revenue officer in such proceeding would be a decree. It has the force of a decree which it might have without the proceeding necessarily becoming suit. (4) None of the rules framed by the Local Government under Section 189 (1) of the Act laid down that such a proceeding would be a suit. (5) The rule framed by the Government to the effect that such a proceeding should be dealt with as a suit in respect of its procedure did not make them suits for purposes of court-fees as Section 189 of the Act did not authorize the Government to make rules about court-fees. Ch. 10, Ben. Ten. Act of 1885 has been greatly modified from time to time after the Full Bench decision by amending Acts. Government have now obtained power from the legislature to fix court-fees for proceedings for settlement to fair and equitable rent: see Section 105 (3). Section 105-A has been introduced. Mukherjee, J., while stating the history of the introduction of this section in Jnanda Sundari v. Abdul Rahman 1916 Cal 413 decided by a Full Bench of this Court, observed as follows in the year 1916:
Section 105 did not by itself in its original form contemplate an investigation into the question of the correctness of entries in the Record of Rights; yet a practice had grown up in proceedings under that section to decide questions which the legislature contemplated should be determined by a suit under Section 106. To put up the matter in another way the parties were placed in the same position as if a suit under Section 106 and a proceeding under Section 105 has been simultaneously instituted and consolidated and an amalgamated trial held for the investigation of the question of fair and equitable rent. This led to the introduction of Section 105-A which regularises the practice that gradually developed; and the revenue officers while seized of proceedings under Section 105 were expressly authorized to determine questions mentioned in Section 105-A which in ordinary course would form the subject of an enquiry under Section 106 * * * * It follows accordingly that if in any proceeding under Section105 questions under Section 105-A have been investigated and determined, the order of the Settlement Officer, though in form an order which settles a fair and equitable rent does in substance embody a decision ofquestion within the scope of Section 105-A and consequently of Section 106. .... We cannot be invited to sacrifice substance to form, to look merely at the label and not the contents of the adjudication.
7. Before the introduction of Section 105-A by the amending Act of 1907, by a notification of the year 1899 a court-fee stamp of 8 annas was payable on application under Section 105 which replaced Section 104 (2) of the old Act in the year 1898. By the notification of the year 1918 and 1922 under Section 105 (3), Ben. Ten. Act, court-fees payable were fixed thus: (a) A stamp of 12 annas for each tenancy which is the subject-matter of an application under Section 105. (b) An ad valorem fee chargeable under Article 1, Schedule 1, Court Fees Act subject to a maximum of Rs. 20 in addition to the stamp of 12 annas for adjudication of issues mentioned in Section 105-A. By the notification under Section 35, Court Fees Act the court fee payable for a suit under Section 106 is exactly the same as for trial of issues specified in Section 105-A in a proceeding under Section 105. This has been made clear by the introduction of Section 105-B in Ch. 10, Ben. Ten. Act. Section 107 of the Act as it stood before its amendment in 1898 laid down that the decision in a proceeding for settlement of rent should have the force of a decree. The decision under Sub-section 105 and 105-A have now the force and effect of a decree of a civil Court in a suit between the parties. By Rule 60 (9) and (10) of Government rules framed under the Act the entry made in the decision of the Revenue Officer and schedule attached thereto with regard to the fair rent settled shall be held to be a decree and a proceeding under Section 105-A shall be considered as a part of the proceedings under Section 105.
8. Before 1898 there was no provision in Ch. 10 corresponding to Section 109 which was introduced by the Amending Act of 1898. After the introduction of Section 105-A proceedings under Sub-section 105 and 105-A are now under the operation of Section 109. Under Section 108 (3) of the Act as it stood before 1898 though there was a second appeal to this Court from the decision of a special Judge in a suit under Section 106, there was no second appeal to this Court from the decision of the special Judge in a proceeding under Section 104 (2). Section 109-A (now Section 115-C after amendment in 1928) which has replaced the old Section 108 gives a right of second appeal if the decision of the special Judge is not a decision simply settling rent but a decision determining questions within the scope of Section 105-A and consequently of Section 106. By successive legislation and notification after the Full Bench decision in Upadhaya Thakur's case (2) the character of a proceeding under Section 105 in which questions mentioned in Section 105-A are investigated and determined has now been changed, The decision on questions specified in Section 105-A is for all practical purposes a decision under Section 106. The ruling in Upadhaya's case (2) therefore cannot in my opinion apply to appeals before the special Judge against the decision of the Revenue Officer determining questions specified in Section 105-A. For such appeals memorandum of appeals within the meaning of Article 1, Schedule 1, Court-fees Act, are required and the Court-fees payable on such memorandums are ad valorem on the value of the subject matter of dispute in appeal subject to a maximum of Rs. 20.
9. The next question is what is the value of the subject matter of dispute in the appeals before the special Judge. In determining the value under Article 1, Schedule 1 we have got to look to the principles laid down in the sections of the Act. in view of the decision of the Court to which the appellant was a party i.e. Charusila Dasi v. Mazaffar Shaikh 1932 Cal 674 the principle laid down for determining the value of memorandum of appeals in suits under Section 7 (ii), Court-fees Act should be adopted in valuing the appeals before the special judge in these cases. The appellant is therefore liable to pay a court-fee of 12 annas plus ad valorem fee on ten times the difference between fair rent claimed before the revenue officer and the rent recorded in the record of rights subject to a maximum of Rs. 20 for each of the khatiana.
10. We therefore direct the stamp reporter to report what would be the additional court-fee, which was payable in the Court of the revenue officer and the Special Judge in accordance with our decision in the cases for the khatians other than those in respect of which the claim has been dismissed by us. The stamp reporter is also directed to report what amount of additional court-fee would be payable on the memorandums of appeals treated as petitions for revisions under Section 115, Civil P. C. Further orders in these cases will be made as soon as the report of the stamp reporter is submitted.
11. I agree.
12. S. A. 1069 of 1932: The appellant is directed to deposit Rs. 3 that is, the deficit court-fee, within a week from this date. On such deposit being made, the judgment and decree of the Special Judge will be set aside and the case will be sent back to him for hearing on the merits according to law. Costs in this Court will abide the result. Hearing fee one gold mohur. If however the deficit court-fee be not paid as directed above, the order of the Special Judge will be affirmed without costs. The petition of compromise filed in this Court will also be sent to the Special Judge for being disposed of according to law, if the deficit court-fee be paid as directed above.
13. S. A. 1070 of 1932: The learned advocate for the appellant states that his client does not want to proceed with this application for settlement of fair and equitable rent in respect of the Khatians other than Khatian Nos. 10, 19, 150, 171, 203, 206. The judgment and decree of the Special Judge in respect of those Khatians are therefore affirmed without costs. As regards the other Khatians, that is, Khatians Nos. 10, 19, 150, 171, 203 and 206, the landlord will get fair and equitable rent at the rate mentioned in the petitions of compromise.
14. S. A. 1071 of 1932: The learned advocate for the appellant states that his client does not want to press his application for settlement of fair and equitable rent so far as the Khatians other than Khatians Nos. 121 and 160 are concerned. The application for settlement of fair and equitable rent in respect of those Khatians is therefore dismissed. As regards the remaining Khatians that is, Khatians Nos. 121 and 160, the appellant will get fair and equitable rent at the rate mentioned in the petitions of compromise. There will be no order for costs in this case.