Lancelot Sanderson, C.J.
1. The question which was referred to this Court relates to a preliminary point as to whether there was a second appeal under the circumstances of this case, and it is stated at page 2 of the paper-book before me as follows: 'When in a proceeding under Section 105 of the Bengal Tenancy Act, the Settlement Officer is asked to increase the rent under Sub-section (4) in accordance with the rules laid down in Section 52, and the claim is refused, on appeal to the Special Judge, on the ground that the land of the tenant is not proved to be in excess of the area for which rent has been previously paid, is a second appeal barred by Section 109A of the Act?'
2. The Settlement Officer had decided that the tenants were in possession of land which, was in excess of the area mentioned in the tenancy agreement. The tenancy agreement provided that the landlord could have the land measured within the term, and if the area or the classification was found to be wrong, the tenant would be bound to pay additional rent or be entitled to a reduction of rent, as the case might be. The Settlement Officer held that by reason of that provision it was open to the landlord to have the matter of the area enquired into. He, therefore, proceeded to enquire into it, and held, as I have already said, that the tenants were in fact in possession of excess land.
3. The tenants thereupon appealed to the Special Judge, who reversed the decision of the Settlement Officer upon the question as to whether the tenants were in possession of excess land. He then proceeded to deal with the rates of rent with regard to the lands which were specified in the tenancy agreement. His judgment is to be found at pages 26 and 27 of the paper-book of Appeal No. 2915 of 1908. I need not read it. He begins his judgment, with regard to the first finding in this way, Next comes the question of whether the tenants have been found to be in possession of any excess land'; and his conclusion is that for the reasons I hold that the Settlement Officer was wrong in finding that the tenants, or any of them, are in possession of excess land.' Then at page 27 he proceeds to deal with the question of rent. Now, the decision of this question depends upon a few sections of the Bengal Tenancy Act which I propose to read. The first Section to which I need draw attention is Section 52. I do not intend to read but merely mention it, for the purpose of showing that I have not for gotten it. Section 105, Sub-section (1), provides that when, in any case in which a settlement of land revenue is not being made or is not about to be made, either the landlord or the tenant applies, within two months from the date of the certificate of the final publication of the Record of Rights under Section 103A, Sub-section (2), for a settlement of rent, the Revenue Officer shall settle a fair and equitable rent in respect of the land held by the tenant.' Then Section 105A provides, 'Where, in any proceedings for the settlement of rents under this part, any of the following issues arise: (a) whether the land is, or is not, liable to the payment of rent...the Revenue Officer shall try and decide such issue and settle the rent under Section 105 accordingly.' Then Section 109A, Sub-section (3), provides subject to the provisions of Chapter XLII of the Code of Civil Procedure, an appeal shall lie to the High Court from the decision of a Special Judge in any case under this Section (not being a decision settling a rent) as if he were a Court subordinate to the High Court within the meaning of the first Section of that Chapter: provided that, if in a second appeal the High Court alter the decision of the Special Judge in respect of any of the particulars with reference to which the rent of any tenure or holding has been settled, the Court may settle a new rent for the tenure or holding' and so on.
4. Now in my judgment, Section 109A clearly contemplates an appeal from the Special Judge to the High Court, with reference to the particulars in respect of which the decision which settles the rent is given. It was argued by the learned Vakil who appeared for the appellant that the matter upon which the judgment was given in this case was a particular with reference to which the rent of any tenure or holding has been settled, or to put in the negative way, it was not merely a decision settling a rent. I agree with the contention. I can quite see that a matter such as this between the landlord and tenant may be a matter of great importance, which may involve not only a question of fact but a question of law. As it seemed to me the question in this case did involve a question of fact as well as of law. First of all, it was alleged that under the terms of the agreement the landlord was entitled to go beyond the area which was specified in the agreement, and was entitled to have the area of the land remeasured and settled, which was clearly a question of law; and it also involved the question of fact whether the area contended for by the landlord was the right one or that contended for by the tenant was the right one.
5. For these reasons I come to the conclusion that that part of the judgment of the Special Judge in which he overruled the judgment of the Settlement Officer was not merely a decision which settled the rent. Therefore, there was an appeal from the decision of the Special Judge to the High Court. The conclusion at which I have arrived upon a consideration of these sections is supported by the decisions which were cited on behalf of the appellant. It is only necessary for me to say, therefore, that the answer which, in my opinion, ought to be given to the question that has been referred is that the appeal in this case is not barred by Section 109A of the Act.
6. I, therefore, think that the appeal ought to be entertained, and having been entertained it ought to be allowed, and the decision of the Settlement Officer restored, with costs both of this reference and in the Division Bench, hearing fee, one gold mohur for each hearing.
John Woodroffe, J.
7. I agree that the question referred to us should be answered in the negative and, therefore, an appeal lies. On the merits also, as is stated in the referring order, I think the appeal should succeed.
Asutosh Mookerjee, J.
8. The question referred for decision by this Full Bench has been framed in the following terms: 'When, in a proceeding under Section 105 of the Bengal Tenancy Act, the Settlement Officer is asked to increase the rent under Sub-section (4) in accordance with the rules laid down in Section 52, and the claim is refused, on appeal to the Special Judge, on the ground that the land of the tenant is not proved to be in excess of the area for which rent has been previously paid, is a second appeal barred by Section 109A of the Act?'. In my opinion, this question should be answered in the negative, on a true interpretation of Sub-section 3 of Section 109A of the Bengal Tenancy Act. That sub-section provides that, 'subject to the provisions of Chapter XLII of the Code of Civil Procedure of 1882, an appeal shall lie to the High Court from the decision of a Special Judge in any case under this Section (not being a decision settling a rent) as if he were a Court subordinate to the High Court within the meaning of the first Section of that chapter', In the case before us, proceedings were initiated under Section 105, which is mentioned in Sub-sections 1 and 2 of Section 109A, consequently an appeal lies to this Court from the decision of the Special Judge provided his decision is not 'a decision settling a rent'.
9. To determine the precise scope of this expression, it is necessary to examine briefly the scheme of Chapter X of the Bengal Tenancy Act, in which Section 109A finds a place. This Chapter is divided into four parts. The first part, which treats of the preparation and publication of the Records of Rights comprises Sections 101 to 103B. The second part contains Sections 104 to 104J and deals with questions of settlement of rents, preparation of settlement rolls, and disposal of objections, in cases where a settlement of land revenue is being or is about to be made. The third part, which includes Section 105 to Section 109A, treats of settlement of rents and decision of disputes in cases where settlement of land revenue is not being or is not about to be made. The fourth part, which covers Sections 109B to 115A, embodies settlement provisions. Consequently, when a Record of Rights has been prepared and finally published under Sub-section 2 of Section 103A, if, as in the case before us, a settlement of land revenue is not being or is not about to be made, it is open to the parties, landlord or tenant, to initiate proceedings, either under Section 105 or under Section 106. Section 106 enables them to institute a suit before a Revenue Officer to challenge the correctness of the entries made in the Record of Rights. This may be regarded as a procedure for a direct challenge of the entries in the record. If a proceeding is, on the other hand, instituted under Section 105 for a settlement of the rent by the Revenue Officer, the duty is cast upon him to settle a fair and equitable rent in respect of the land held by the tenant. Such a proceeding may follow the result of a suit, if any, instituted under Section 106 or recourse may be had to it without the prior institution of a suit under that section. In the latter event, there may be an indirect challenge of the correctness of the entries in the Record of Rights. The provision for this contingency is embodied in Section 105A, which authorises the investigation of specified particulars in the course of settlements of rent under Section 105, provided, there has been no prior decision upon those questions in a suit under Section 106.
10. The history of the introduction of Section 105A, which was explained in the judgment of the Full Bench in Pirthi Chand v. Basarat Ali 3 Ind. Cas. 449 : 37 C. 30 at pp. 39, 40 (F.B.) 10 C.L.J. 343 : 13 C.W.N. 1149 and later on summarise, in Dhunmun Panday v. Newas Proshad Singh Bahadur 20 Ind. Cas. 841 : 18 C.W.N. 165 at p. 166, throws light upon the solution of the question raised before us. It was pointed out in these cases that although Section 105 did not by itself, in its original form, contemplate an investigation into the question of correctness of the 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 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 had 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 enactment of Section 105A, which regularises the practice that had gradually developed, and the Revenue Officers, while seized of proceedings under Sections 105, were expressly authorised to determine questions mentioned in Section 105A which, in the ordinary course, would form the subject of an enquiry under Section 106. This conclusively answers the objection suggested in the course of the argument that the Settlement Officer in the case before us had no jurisdiction to determine the question of excess area: Dhunmun Panday v. Newas Proshad Singh Bahadur 20 Ind. Cas. 841 : 18 C.W.N. 165 at p. 166. It follows accordingly that if in any proceeding under Section 105, questions under Section 105A 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 of questions within the scope of Section 105A, and consequently of Section 106. If the order is of that description, we cannot reasonably hold that the decision of the Settlement Officer is a decision merely settling a rent within the meaning of Section 109A; and consequently not liable to be challenged by way of second appeal to this Court. We cannot be invited to sacrifice substances to form, to look merely at the label and not the contents of the adjudication. If the questions specified in Section 105A had been decided in a suit under Section 106, the determination by the Revenue Authorities would not be final; the appellate decision of the Special Judge would be liable to be tested in second appeal to this Court. It cannot, on principle, make any difference that those very questions have been determined by the very same authorities in a proceeding under Section 105. This view is amply borne out by the proviso to Section 109A, which contemplates the possibility of interference by the High Court with the determination by the Revenue Officer and the Special Judge of the particulars essential for a settlement of fair and equitable rent. In the case before us, the substantial question in controversy between the parties was, whether the tenant was liable to pay rent in respect of what may be compendiously called excess land.' The case for the landlord was that the area in the occupation of the tenant exceeded the area mentioned in the contract of tenancy. The landlord, consequently, claimed assessment of rent on the difference between these two areas and prayed that a fair and equitable rent might be settled in respect of all the lands in the holding. The tenant repelled the suggestion that he was in possession of excess land. The Settlement Officer came to the conclusion that the tenant was in occupation of excess area, in other words, that the area in his occupation exceeded the area for which the rent had hitherto been paid by him; and he assessed fair rent on this basis. Upon appeal, the Special Judge has reversed that decision. Consequently, although the decision of the Special Judge has settled a fair and equitable rent, it has also determined a question of fundamental importance to the parties, namely, what are the lands liable to be assessed with fair and equitable rent; clearly, a second appeal is not barred with regard to the determination of the latter question.
11. The distinction I have just explained was recognised as early as 1897 in Mathura Mohun Lahiri v. Uma Sundari Debi 25 C. 34 where a question arose, whether the tenant was in occupation of excess land. The answer depended upon the determination of the length of the standard pole used for measurement of the land. The Court of first instance went into this question and came to a finding; but upon appeal, the Special Judge declined to investigate the matter. This Court held that a second appeal was competent, as the question was in essence not of fair and equitable rent, but of the, area of the land included in the tenancy. Mr. Justice Macpherson, observed that the appeal did not raise any question as to what the fair and equitable rent was, but it did raise questions as to a matter which must be decided before the Settlement Officer could settle the amount of rent payable, namely, the area of the land in respect of which the landlord was entitled to have the rent assessed. This view was followed in the cases of Rajkumar Pratap Sahay v. Ram Lal Singh 5 C.L.J. 538 at p. 539; Akbar Ali Mian v. Musammat Hira Bibi 15 Ind. Cas. 332 : 16 C.L.J. 182 at p. 183.; Lakhi Narain Sarongi v. Sri Ram Chandra Bhunya 11 Ind. Cas. 212 : 15 C.W.N. 921 : 14 C.L.J. 146 and Dhunmun Pandey v. Newas Proshad Singh Bahadur 20 Ind. Cas. 841 : 18 C.W.N. 165 at p. 166. The same principle underlies the decision of the Full Bench in Pirthi Chand v. Basarat Ali 3 Ind. Cas. 449 : 37 C. 30 at pp. 39, 40 (F.B.) 10 C.L.J. 343 : 13 C.W.N. 1149, where the Courts below had decided a question falling within the scope of Clause (c) of Section 105A, namely a question as to the status of the tenant.
12. It has been urged, however, that a different view was taken in Shewbarat Koer v. Nirpat Roy 16 C. 596 at p. 597; Lala Kirat Narain v. Palukdhari Pandey 17 C. 326; Rameswar Singh v. Bhooneswar Jha 4 C.L.J. 138 : 33 C. 837 and W.M. Grant v. Ram Rakhar Bhagat 6 Ind. Cas. 501 : 14 C.L.J. 110. In my opinion, this contention is based uoon an erroneous interpretation of the decisions mentioned. The case of Shewbarat Koer v. Nirpat Roy 16 C. 596 at p. 597 plainly indicates that the question raised there related to the rent settled and not to matters now included in Section 105A. This is emphasised in Lala Kirat Narain v. Palukdhari Pandey 17 C. 326, where Mr. Justice Ghose expressly stated that no question arose before him as to the particulars entered in the Record of Rights; in fact, the question related exclusively to what was the fair and equitable rent. This, so far as I can gather, was also the view adopted in Rameswar Singh v. Bhooneswar Jha 4 C.L.J. 138 : 33 C. 837 and W.M. Grant v. Ram Rakhar Bhagat 6 Ind. Cas. 50J : 14 C.I. 3. 110. I feel no doubt, accordingly, that the question propounded for the decision of the Full Bench should be answered in the negative.
13. As regards the merits, it has been argued that Chapter XLII of the Civil Procedure Code of 1882, mentioned in Sub-section 3 of Section 109A, which has now been replaced by Section 100 of the Civil Procedure Code of 1908, effectively bars the present appeal. There is plainly no force in this contention. Sub-section 3 of Section 109A merely provides that if the appeal is otherwise competent, it is to be heard as an appeal from appellate decree, subject to the rules laid down in that behalf in the Civil Procedure Code, in other words, this Court can interfere in an appeal of this description, only if the decision of the lower Appellate Court involves an error of law. In this connection, our attention had been drawn to a passage in the judgment of the Special Judge where he states that the tenant was not in occupation of any excess land. At first sight, this may bear the appearance of a finding of fact not successfully assailable in second appeal. But, upon closer examination, it appears that the finding involves an error of law. The Special Judge has held in substance that the tenant is not in occupation of excess land, because he must be deemed under his contract to be in occupation of the area mentioned therein. This overlooks the fundamental point that the contract itself provides that the landlord will be at liberty to re-measure the lands. The lands have been actually re-measured in the Settlement proceedings under Chapter X of the Bengal Tenancy Act, and the landlord claims assessment of fair rent on the area so determined by the Revenue Authorities, which must, prima facie, be deemed correct under Section 103B. The tenant defendant might possibly, either by the institution of a suit under Section 106 or by way of objection in this very proceeding, have established that the entry in the Record of Rights was erroneous; but he has not done so. Consequently, the landlord was entitled to have fair rent assessed on the basis of the area as found by the Settlement Officer, and this was the view accepted by him.
14. In my opinion, this appeal must be allowed, the decree of the Special Judge reversed and that of the Settlement Officer restored with costs throughout.
Herbert Holmwood, J.
15. I agree with the judgment delivered by the learned Chief Justice that in the case before us a second appeal does lie under Section 109A. I am of opinion that each case must depend on its own circumstances and that no general rule can be laid down as to what is or what is not a decision merely settling a rent. But it is clear that whatever is found in any case to go beyond that simple decision and to decide any of the particulars referred to in Section 105A or Section 106 of the Bengal Tenancy Act is open to second appeal. I also agree with my learned brother Mookerjee that there is no real conflict in the decisions that have been cited before us on either side.
16. I, therefore, agree that the appeal should be allowed and the judgment and decree of the Settlement Officer restored with costs.
D. Chatterjee, J.
17. I agree in answering the question referred to us in the negative. I think the proviso to Section 109A supplies an important clue of the explanation of the bar to second appeals imposed in Clause (3) of the section. This proviso is to the effect that if in a second appeal the High Court alters the decision of the Special Judge in respect of any of the particulars with reference to which the rent of any tenure or holding has been settled, the Court may settle a new rent for the tenure or holding, etc. This, therefore, contemplates the case of appeals to the High Court lying in cases in which rents have been settled, not against the order settling the rent but against the decision of the Court upon the particulars in respect of which the order settling the rent has been passed. In view of this distinction made by the section itself the controversy that appeals against orders resulting in the settlement of rent are barred, does not seem to be sound.
18. Then with regard to the merits of the case it has been contended that there is a finding of fact which will prevent our interference in second appeal. That finding of fact is that the tenant is not in possession of excess lands. This to my mind upon the facts of this case is an apparent finding of fact but based upon an erroneous view of the legal rights of the parties as determined by the contract entered into by them and is, therefore, liable to examination in second appeal.