1. The plaintiffs were entered in the record-of-rights under Chapter X of the B.T. Act, as tenure-holders without fixity of rent in respect of four tenancies. The final publication took place on the 29th October 1905 and the plaintiffs brought this suit in March 1906 for a declaration that the record was wrong and that they were raiyats with a fixed rent. The zemindar defendant admitted that the plaintiffs were occupancy raiyats but denied that they paid a fixed rent. The learned Munsif held that the suit being one for a declaration was one under the Specific Relief Act and not one under the Bengal Tenancy Act, so that the presumption under Section 50 of the B.T. Act, as regards fixity of rent did not apply and that on the merits no uniform payment of rent had been proved. The learned Subordinate Judge on appeal by the plaintiffs reversed the judgment of the learned Munsif and decreed the suit. It is contended in appeal before me:
(1) that the suit itself is not maintainable and the plaintiffs ought to have sought their remedy in the settlement proceedings
(2) that the suit is not one under the Bengal Tenancy Act and the presumption does not apply.
2. As regards the first point, reliance has been placed on the case of Jogendra Nath Rai v. Krishna Promoda Dasee 35 C. 1013 : 12 C.W.N. 1032 : 8 C.L.J. 322, in which it was held that no regular suit will lie for the alteration or correction of an entry in the record-of-rights. That case related to cases in which the Settlement Officer had held that certain lands claimed as rent free were mal, and that certain lands claimed as belonging to the plaintiff's zemindari belonged to the zemindari of the defendants, matters which could hardly be decided under the Act before the amendment of 1907. See the case of Mohunt Padmalay v. Lukmi Rani 12 C.W.N. 8. There is also a series of cases in the books in which the Court has entertained suits intended more or less for the correction and alteration of the record-of-rights.
3. See Shambhu Chandra Hazra v. Purna Chandra 35 C. 176 : 7 C.L.J. 103 : 12 C.W.N. 122. Ram Ghulam Singh v. Bishnu Pargash Narain Singh 11 C.W.N. 48, Troylokhya Nath Bose v. M.N. Macleod 28 C. 28, Toki Sahu v. Tosi Munda 3 Ind. Cas. 689 : 9 C.L.J. 83 : 13 C.W.N. 111, Luchmi Pershad v. Ekdeshwar 13 C.W.N. 181 : 4 Ind. Cas. 577. Sheonandan v. Bacha Raut 9 C.L.J. 284 : 4 Ind. Cas. 54.
4. The provisions of Sections 111 and 111A are expressly in favour of the competency of such suits. The facts of the present case are also different from those of the case of Jogendra v. Krishna 35 C. 1013 : 12 C.W.N. 1032 : 8 C.L.J. 322, and following the current of cases and the express provisions of law authorising such suits I think the present suit was competent and the first plea of the appellant fails.
5. The next question is whether this is a suit under the Act. Section 111A of the Act says any person dissatisfied with any entry may institute a suit for the declaration of his right under Chapter VI of the Specific Relief Act.' But for this express declaration in the Act there might be great difficulty in inducing Courts to entertain such suits and the case of Jogendra v. Krishna 35 C. 1013 : 12 C.W.N. 1032 : 8 C.L.J. 322, is an instance of the view which Courts might take. I think, therefore, that although the suit is for a declaration of right under the Specific Relief Act, it is a suit authorised by the Bengal Tenancy Act and is, therefore, a suit under the Act.
6. As regards the plea that the presumption is barred by section 115 of the Act, I think the case reported in the foot-note to the Full Bench case of Pirthi Chand v. Shukle Basarat 3 Ind. Cas. 449 : 13 C.W.N. 1149 : 10 C.L.J. 343 : 37 C. 30, is a sufficient answer so far as I am concerned and I accordingly dismiss the appeal with costs.