1. This is an appeal by the plaintiffs in a suit for recovery of arrears of rent. According to the plaintiffs, the defendants hold as under-raiyats under a kabulyat executed on the 1st November 1903. The plaintiffs claim rent at the annual rate of Rs. 30, which is stated in the contract as the price of the paddy payable by the tenant to his landlord. The defendants contend that they are occupancy raiyats and that by a commutation order made under Section 40 of the Bengal Tenancy Act, they are liable to pay rent only at the rate of Rs. 13-6-6 a year. The Court of first instance decreed the claim in full. On appeal the contention of the defendants has been allowed to prevail. The plaintiffs have now appealed to this Court.
2. A preliminary objection has been taken on behalf of the respondents that the appeal is incompetent under Section 153 of the Bengal Tenancy Act as the amount claimed in thesuit is less than Rs. 100. In our opinion, there is no foundation for this contention. The decree under appeal has decided the question of the amount of rent annually payable, namely, is it Rs. 30 a year as claimed by the plaintiffs or Rs. 13-6-6 a year as alleged by the defendants. This clearly is a question the decision whereon may be challenged by way of appeal under Section 153, Bengal Tenancy Act. The view we take is supported by the case of Apurba Krishna Roy v. Ashutosh Dutt 9 C.W.N. 122.
3. As regards the merits, it is plain that the view taken by the Court of first instance must be upheld. It has not been seriously contested that the defendants are under-raiyats according to the terms of the kabulyat by which the tenancy was created. But it has been argued that the order under Section 40 is conclusive between the parties and debars the plaintiffs from asserting that the defendants are not occupancy raiyats. In support of this view, reliance has been placed upon the case of Lalla Saligram Singh v. Mohunt Ramgir 3 C.W.N. 311. That case is clearly distinguishable. There an application for commutation of rent had been dismissed by the Revenue Authorities concerned. The applicant then instituted a suit in the Civil Court for declaration of his status and also for an order to compel the Revenue Authorities to make an order for commutation under Section 40. It was ruled that a suit couldnot be maintained for this purpose. The Court pointed out that the Legislature had given a judicial discretion in this matter to the Revenue Court and to the Revenue Court alone, and did not allow its decision to be hampered either in advance or afterwards by any decision come to by the Civil Court. This view is clearly in accord with the provisions of Clause (6) of Section 40 of the Bengal Tenancy Act. It may be conceded that the propriety of commutation or of the amount fixed cannot be called in question in a Civil Court. But it is plain that a proceeding under Section 40 is founded on the assumption that the tenant whose rent is sought to be commuted is an occupancy raiyat. The Legislature could never have intended that a dispute as to the status of the tenant should be finally decided by the Revenue Authorities in a commutation proceeding under Section 40 and should thereafter be conclusive between the parties in the Civil Court. In the case before us, as it has been established that the defendants are under raiyats, no order for commutation could have been made under Section 40. The order made by the Revenue Court was consequently without jurisdiction, the essential foundation for the exercise of jurisdiction, namely, that the tenant whose rent was sought to be commuted was an occupancy raiyat, is proved to have been non-existent. If the commutation order is out of the way, there is no room for controversy that the plaintiffs are entitled to realise rent at the rate mentioned in the plaint.
4. The result is that this appeal is allowed, the decree of the District Judge set aside and that of the Court of first instance restored. This order will carry costs in all the Courts.