1. These two appeals arise out of two rent suits, namely Nos. 39 and 2475 of 1934. Both of them have been dismissed by the Courts below, and the plaintiff has accordingly preferred these two appeals. The first suit was filed by Maharaja Srish Chandra Nandi as shebait of Thakur Sree Sree Lakshmi Narayan Deb and the second in his personal capacity. The idol is the proprietor of touzi No. 560 of the Murshidabad Collectorate. Under the idol, Robert Watson & Co. held a gar mokarari tenure of an area of 1321 bighas of land at an annual rent of Rs. 551. The interest of Robert Watson & Co. has devolved upon the defendants-respondents. The said tenure was converted into a mokarari one in the year 1319 B. S.; selami was paid and the rent was fixed at Rupees 641.3.0 in perpetuity. On 11th April 1913 the late Maharaja Manindra Chandra Nandi, the father of Maharaja Srish Chandra, who was then the shebait executed the mokarari potta in favour of the defendants-respondents and the latter executed the corresponding kabuliat. In these documents it is recited that 951 bighas 16 cottas odd of the demised area was then in the river bed, and a covenant was made that if the tenant was unable to possess the said area or any part of it on re-formation owing to the defect of title of the landlord, the landlord would either give to the tenant an equal quantity of land from other parts of his estate, or allow proportionate abatement of rent.
2. Shortly after the execution of the potta and kabuliat, the submerged lands appeared ' above water and became fit for cultivation. Diara proceedings were started by the Government as also proceedings under' Part II of Ch. 10, Ben. Ten. Act. These proceedings were completed in the year 1916. The southernmost part comprising an area of about 573 bighas was found by the revenue officers to be the lands of touzi No. 560, and the middle portion comprising an area of about 366 bighas was found to be part of the old river bed. This portion with other accretions was formed into a separate estate, No. 2504, and as it was alluvial accretion to the lands of touzi No. 560, a temporary settlement was offered to the proprietor of the latter estate, e. g. the idol represented by Maharaja Manindra Chandra Nandi. The latter accepted the offer, and though the settlement ought to have been made with him as shebait, the actual settlement for a term of five years and at a revenue of Rs. 125 was made with him in his personal capacity with effect from April 1921. It is for this that the second rent suit has been brought by Maharaja Srish Chandra in his personal capacity as heir of his father, but it was conceded by the plaintiff in the lower Courts that the temporary settlement of estate No. 2504 was really taken by the late Maharaja in his capacity as shebait and the second rent suit ought therefore to be treated as having been brought by Maharaja Srish Chandra in his capacity of shebait. In the proceedings under Part II of Ch. 10, Ben. Ten. Act, the defendants-respondents, were recorded in the Record of Eights to be in possession of the aforesaid area of 366 odd bighas as tenants, and the fair rent payable by the said defendants-respondents was settled under Section 104, Ben. Ten. Act, at Rs. 151-5-0. The remaining portion of the newly formed land about 380 bighas in area, the northernmost portion, was found to be re-formations in situ of the lands of a khas mahal called Jhowbona belonging to Government and the Government took possession thereof as part of its khas mahal estate.
3. The net result of these proceedings was that out of the 951 bighas of land which was under water at the date of the mokarari potta, only about 573 bighas were found to appertain to touzi No. 560, and the defendants got possession thereof and are in peaceful possession. An area of 366 bighas odd was found to be outside touzi No. 560, but as the proprietor of touzi No. 560 got temporary settlement thereof from the Government, the defendants also got possession of the same and are in peaceful possession. But they could not get possession of the remaining area of about 380 bighas which was found to be part of Jhowbona and that by reason of the defect of title of the grantor of the mokarari potta. The defendants thereupon demanded of Maharaja Manindra Chandra Nandi the fulfilment of his covenant. He was asked either to give land in lieu of the said 380 bighas out of other portions of his estate or to give proportionate abatement of rent. After some correspondence Maharaja Manindra Chandra Nandi agreed in 1924 to give a proportionate abatement of rent amounting to Rs. 184-15-0 on the said area of 380 bighas odd land. The rent for the areas in possession of the defendants after the said abatement became accordingly Rs. 456-4-0. Rent at that rate was paid and accepted from 1331 to 1339 B. S., and in the dakhilas granted to the defendants the said rent is shown as due in respect of one tenancy consisting of lands of both touzis Nos. 560 and 2504. The first revenue settlement of estate No. 2504 expired in March 1926 and thereafter up to March 1928 yearly settlements were made by the Government with Maharaja Nandi at the same revenue of Rs. 125. In 1928-1929 the condition of the property having improved, revenue was assessed at Rs. 1038-13-0 and summary settlements were made with him till March 1933, the revenue payable being the said sum of Rs. 1038-13-0. In 1927-1928, the Government thought of a survey and settlement afresh under Part II, Chap. 10, Ben. Ten. Act, and a revenue settlement for a term of years, In the proceedings under Section 104, Ben. Ten. Act, the rent payable by the defendants in respect of the area within touzi No. 2502 in their possession was assessed at Rs. 285-4-0 in place of the former figure, Rs. 151-5-0. The Record of Eights was made final in 1932, and the Maharaja then engaged with the Government for a term of ten years agreeing to pay an annual revenue of Rs. 1085. In the first of the aforesaid rent suits, the plaintiff claimed at the rate of Rs. 641-3-0 and cess at the rate of Rs.25-8-3 per year. The total sum payable is shown in the plaint thus:
Rs. a. p. Rent for 1837 to Pous Kistof 1340 ... ... 2404 7 6Cess for the said period ... 95 11 0------------------Total 2500 2 6
4. He gave credit for the payments made by the defendants as follows:
Rs. a. p. Towards rent ... ... 1259 4 3Cess ... ... 95 11 0-----------------Total 1354 15 3
5. He accordingly laid his claim at 1145.3-3 plus damages Rs. 286-4-9 = total Rs. 1431-8-0.
6. The lands of the tenancy were described by reference to those settlement dags in the possession of the defendants and which had been included in touzi No. 560. In the second suit the claim was laid as follows:
Rs. a. p. Rent for 1887 to 1339 at therate of Rs. 151-5-0 ... 453 15 0Cess for 1337 to 1339 at therate of Rs. 4-11-9 ... 14 3 3Rent for 1340 at the rate of285/4 up to Pous Kist ... 178 4 0Cess for the said period ... 5 10 6----------------Total 652 0 9
7. He gave credit for the sum of Rupees 451-10-6, Rs. 431-12.9 being for rent and Rs. 19-13-9 for cess. The description of the tenancy is also by reference to these settlement dags in the possession of the defendants and included in touzi No. 2504. The first suit proceeds upon the basis that the tenancy described therein is covered by the mokarari potta of 1913, and the second suit on the basis that the lands mentioned in the Schedule of the plaint in that suit are outside the said potta and the claim is laid on the basis of the rent settled by the revenue officers under Section 104, Ben. Ten. Act. It has however been found by both the Courts below that the lands of both the suits are covered by the said potta and these re-formed lands together with remaining 380 bighas included in Jhowbona are portions of the 951 bighas which were at the date of the potta in the river bed. The defendants maintain that the division of the lands in their possession into two tenancies made by the plaintiff in his plaints is imaginary and that the said lands form parts of one tenancy for which the rent payable was Rs. 456.4-0 per year after they had been allowed abatement in 1924 by the late Maharaja. They further pleaded that they had paid according to the said rate and nothing was therefore due. The Courts below have found that the Maharaja agreed in 1924 to grant an abatement of Rs. 184-15-0 per year on account of the fact that the defendants could not take possession of 380 bighas of land in which he had no title and that the payments made by the defendants were sufficient to wipe off the arrears of rent, taking the rate to be Rs. 456-4.0 per year.
8. Mr. Bhattacharya, the learned advocate for the appellant, accepts the finding, as he is bound to do in second appeal, that in 1924 the late Maharaja agreed to take the total sum for Rs. 456-4-0 as the yearly rent. He says that the agreement of that year must be construed to be an agreement of the following nature, namely that the Maharaja agreed to take Rs. 151-5-0 per year in respect of the diara lands, that being the fair rent settled by the revenue authorities under Section 104, Ben. Ten. Act, as payable by the defendants, and the balance of Rs. 304-15-0 for the lands of touzi No. 560. On this hypothesis, he argues that when in 1931.1932 the rent of the diara lands was again settled under Section 104, Ben. Ten. Act, at Rs. 285-4-0, his client became entitled to rent at the rate of Rs. 304-15-0 + Rs. 285-4-0 =Rs. 590-3-0 per year. He says that for 1340 his client is accordingly entitled to claim at this rate. This is his first contention. It comes to this that the agreement of 1924 was binding on his client only during the currency of the revenue settlement of the diara lands made with him by the revenue authorities on the footing that the rent payable by the defendants for the diara lands was Rs. 151-5-0 per year. His second contention is that assuming that the Maharaja agreed in 1924 to take a consolidated rent of Rs. 456.4-0 for the asli and the diara lands, that agreement was only of binding effect till the second proceedings under Part II of Chap. 10, Ben. Ten. Act, which were made final in 1932, and that thereafter the said agreement became void with the result that the plaintiff is entitled to fall back upon the mokarari potta of 1913 and claim rent for the asli land at the pottai rate, i.e. proportionate rent for 573 bighas in terms of the potta, and to claim for the diara lands the rent settled under Section 104 of the Tenancy Act, i.e. at the rate of Rs. 285-4-0. In support of both these contentions he relies upon Section 191, Ben. Ten. Act, as also on Sections 104 and 104-J.
9. On the findings arrived at by the Courts below which are supported by letters written by the late Maharaja, we cannot take the agreement of 1924 to be of the nature suggested by Mr. Bhattacharya. By the said agreement, the late Maharaja did not fix rent of the asli lands at Rs. 364-15-0, and of the diara land at Rs. 151-5-0. He had granted in 1913 a mokarari lease of 1321 bighas at a rent of Rupees 641.3-0. When the lands appeared above water and he could not, on account of his defect of title, give the defendants possession of about 380 bighas, he reduced the rent from Rs. 641-3-0 to Rs. 456-4-0 in terms of his covenant in the potta. The position therefore is this : When a zamindar grants a mokarari lease in respect of lands comprising his asli lands and diara lands accreted to his estate at a consolidated rental, is his contract affected when the revenue officers settle the rent payable by the said tenant of the diara portion under Section 104, Ben. Ten. Act, and Government settles the diara lands as a temporarily settled estate with the said zamindar? This question, so far as we are aware, has not been decided in any of the reported oases.
10. In Pria Nath Dass v. Ramratan Chatterjee (1903) 30 Cal 811 the fair rent for the diara chak was settled under Section 10 of Act 8 of 1879 and a temporary land revenue settlement was concluded in 1882 with the proprietor of the adjoining permanently settled estate, who had included the lands of the said chak along with some of his asli mouzas in a ganti tenure at a fixed rent created in favour of the defendants. His representative sued the defendant for rent not at the rate proportionate to that mentioned in the ganti potta, but at the rent settled by the revenue authorities under Section 10 of Act 8 of 1879. In the last mentioned Act however there was no provision corresponding to Section 191, Ben. Ten. Act. Lord Robertson held that the contract between the parties was still binding, the temporary land revenue settlement of the diara chak having been made with the grantor of the ganti potta, and the plaintiff was his representative-in-interest. He also held that if the land revenue settlement had been made with a stranger and that stranger had sued for rent, the position would have been otherwise, on the principle that want of privity of contract between; the plaintiff and the defendant in that case-would have put the ganti potta out of the-way. The case in Khiroda Kanta Roy v. Akshoy Kumar (1917) 4 AIR Cal 599 which was for rent of the self same chak for a later period merely gives effect to the second proposition laid down by Lord Robertson. The temporary revenue settlement having expired, the Government concluded another revenue settlement with the persons who were regarded as strangers to the adjoining permanently settled estate. Before this revenue settlement with the plaintiffs of that suit, proceedings under Part II of Ch. 10, Ben. Ten. Act, had been taken and the rent payable by the defendants for the chak in question settled under Section 104 of the Act at Rs. 1967. This Court held that the plaintiffs were not the representatives of the proprietors of the permanently settled estate who had granted the ganti potta, but were strangers. In Muktakeshi Dassi v. Srinath Das (1915) 2 AIR Cal 284 a temporary settled estate was created in 19.03 in respect of diara lands. In that case it does not appear from the report that rent payable by the tenant was settled under Section 104, Tenancy Act, and the contract by which the lands had been let out by the plaintiffs' predecessor to the defendant's predecessors was dated 19th February 1884, i.e. before the passing of the Bengal Tenancy Act. The effect of Section 192 of the old Act which according to case law only affected contracts made after the passing of the Bengal Tenancy Act (8 of 1885) was not therefore considered, and this Court following Pria Nath Dass v. Ramratan Chatterjee (1903) 30 Cal 811 held that the con. tract was binding in respect of 2/3rd share in respect of which the plaintiff was the representative of the grantor. In Secy. of State v. Midnapore Zamindary Co. First Appeals Nos. 305 to 312 and 328 to 333 of 1927 which has been reversed by the Judicial Committee of the Privy Council on another point (Secy. of State v. Midnapore Zamindary Co. Mukherji J. laid down that notwithstanding proceedings under Ch. 10, Part II, Ben. Ten. Act, the contract between the parties was binding where the land revenue settlement of the diara lands had been concluded with the grantor of the tenancy or his representative, but these observations do not cover the case before us, as the contract in that case had been entered into before 1885, i.e. before the passing of the Bengal Tenancy Act (8 of 1885). In Prafulla Kumar Tagore v. Tweedie (1922) 9 AIR Cal 248 the asli lands together with some lands which were later on found to be diara were settled by the proprietor of the permanently settled estate with the defendant in 1860 at a fixed rent. They took temporarily revenue settlement from Government of the diara land. Before the revenue settlement, rent payable by the defendant was settled under Section 104, Ben. Ten. Act. As the contract was made before 1885, this Court held that it could not be given a go-by under Section 192, but at p. 18 of the report Chatterjea J. expressed the opinion that Section 104.J did not conclude the matter in favour of the plaintiff who claimed rent for the diara land at the rate fixed under ' Section 104.
11. No doubt the settlement of rent under Section 104 is conclusive, i.e. the rent roll is conclusive after final publication of the record, if no proceedings under Section 104-H are taken. Under Section 191 also a landlord, or a tenant, or the revenue officer on his own motion can alter the rent fixed by contract entered into after the passing of the Bengal Tenancy Act, where the contract relates to land not included in a permanently settled estate, but none of the said parties can, in our judgment, create a new contract between the parties only to strike at it. When the contract is for one tenancy bearing a consolidated rent covering both lands of the permanently settled estate and diara lands, the contract cannot be split up, whether at the instance of the revenue officer or of the landlord alone or of the tenant alone, and made into two. That would be creating a new contract between the parties, i.e. substituting two tenancies in the place of one. This can only be done by the mutual consent of the land-lord and tenant. The contract in the case before us is for payment of Rs. 456-4.0 a year for both the asli and diara land. Such a contract is not hit by Section 191 and the defendants are only bound to pay the consolidated rent of Rs. 456.4-0 per year. Section 191 contemplates that a lease or contract (provided it is made after the passing of the Bengal tenancy Act) may be superseded as therein stated, only where the area comprised in the tenure or holding to which the contract relates is situate wholly in an estate not subject to a subsisting permanent settlement. On the findings of the Courts below, this is not the case here. As for the entry in the Record of Rights being conclusive under Sections 104 and 104-J, we do not think that the entry that Rs. 285-4-0 is payable for the diara lands only, that is, that these lands form a tenancy by itself at that rent, can be regarded as conclusive, the preponderance of judicial opinion being in favour of the view that only the entry regarding rent and not other entries in the record, where proceedings under Part II of Ch. 10 have been taken, is conclusive. It is accordingly open to the defendants in this case, to show that they hold one tenancy comprising a bigger area at a rental of Rs. 456-4-0 per year. We are consequently of opinion that the appeals should be dismissed with costs and we order accordingly.