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Raj Mohan Guha Vs. Alam Gazi Patwari - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in17Ind.Cas.279
AppellantRaj Mohan Guha
RespondentAlam Gazi Patwari
Cases ReferredHatton v. Harris
Excerpt:
bengal tenancy act (viii of 1885), section 1034, scope of - power of settlement officer--correction of bona fide mistake--mistakes of party--inherent power of court to correct obvious errors in record--amendment of record after dismissal of appeal. - .....of the courts below.4. the result is, that this appeal is allowed, the decrees of the courts below set aside and the case remanded to the court of first instance for retrial. the court will proceed on the assumption that the amended record is correct; but it will be open to the defendants to rebut this presumption. each party will pay his own costs up to this stage of the proceedings.
Judgment:

1. This is an appeal on behalf of the plaintiff in a suit for rent. The plaintiff claims rent at the rate of Rs. 7-4 on account of 7 bighas and 5 cottahs of land in the occupation of the defendants. The defendants contend that they hold 5 bighas and 17 cottahs on a rental of Rs. 5-13-7 and, in support of their allegation, they rely upon an entry in a Record of Rights finally published on the 20th June 1904. The plaintiff, on the other hand, relies on that very record as subsequently amended by the Settlement Officer on the 2nd September 1907. The District Judge has refused to recognise the amendment of the record on the ground that it was made without jurisdiction. The question in controversy, therefore, is whether the alteration in the record was duly made.

2. It appears that after the final publication of the Record of Rights, fair and equitable rent was settled on the 21st December 1905 in a proceeding under Section 105 of the Bengal Tenancy Act, at the rate of one rupee per bigha. The tenants were dissatisfied with this assessment and preferred an appeal to the Special Judge, which was dismissed on the 9th April 1906. Subsequently, it was discovered that the area had been erroneously put down as 5 bighas and 17 cottahs in the Record of rights. Accordingly, the Settlement Officer, on the 2nd September 1907, amended the record, so as to alter the entry about area from 5 bighas, 17 cottahs to 7 bighas and 5 cottahs; a consequential alteration was made in the entry relating to the rent payable. The District Judge has held that this alteration was unauthorised, first, because under Section 108A of the Bengal Tenancy Act, an alteration of this description could be made only within one year from the date of the publication of the record; secondly, because such alteration could not be made after an appeal in a proceeding under Section 105 had been heard and decided by the Special Judge. In our opinion, the view taken by the District Judge cannot be supported,

3. It was taken for granted in the Court below that the Settlement Officer proceeded under Section 108A of the Bengal Tenancy Act; but there is no foundation for this assumption. The section applies only to Revenue Officers specially empowered by the Local Government in that behalf. It is not shown that the Settlement Officer in this case was so empowered, It is further clear that the Settlement Officer could not have acted under Section 108A, because he amended the record more than a year after the date of the certificate of its final publication. It is worthy of note that Section 108A has a much wider scope than the correction of obvious errors or incidental slips in a Record of Rights. It entitles the Settlement Officer to correct the record where there has been a bona fide mistake; such mistake need not necessarily be the mistake of the Settlement Officer; it may very well be a mistake made by one of the parties concerned. Section 108A, in substance, authorises a Settlement Officer to re-consider the matter on the merits. In the present case, where apparently a clerical or an arithmetical error had to be corrected, the Settlement Officer, even if he had been duly authorised, need not have availed himself of the provisions of that section. He may be deemed, therefore, to have acted in the exercise of a power inherent in every Court to correct obvious errors or incidental slips in its own record. Lord Justice Bawen observed in Mellor v. Swire (1885) 30 Ch. D. 239 at p. 247 : 53 L.T. 205 : 33 W.R. 785 that 'every Court has inherent power over its own record; as long as the records are within its power, it can set right any mistake in them; it would be perfectly shocking if the Court could not rectify an error which is really one of its own ministers.' Equally emphatic are the observations of Lord Blackburn in Lawrie v. Lees (1881)7 App. Cas. 19 at p. 36 : 51 L.J. Ch. 209 : 40 L.T. 210 : 30 W.R. 185 and of Lord Watson in Hatton v. Harris (1895) App. Cas. 517 at p. 560 : 62 L.J.P.C. 24 : 1 Rule 1 : 67 L.T. 722. Hence, the only question for Consideration is, whether the Settlement Officer had authority to amend the Record of Rights at the stage he proceeded to set it right. It has been contended that his authority had terminated, because the Special Judge had already confirmed his order upon the question of fair and equitable rent in the proceeding under Section 105. No doubt, the amount of fair and equitable rent must depend upon the area; but, it is plain, as stated by the District Judge himself, that the substantial matter in controversy before the Special Judge was, whether the rate of one rupee per bigha was or was not fair and equitable. No question appears to have been raised before the Special Judge as to whether the area was 5 bighas, 17 cottahs or 7 bighas, 5 cottahs. Under these circumstances, we must hold that the Settlement Officer had authority to correct the record on the 2nd September 1907. We are not concerned with the question whether the record as amended represented the true state of facts. The only effect of our decision is that the landlord is entitled to rely upon the corrected record under Section 103B (c) of the Bengal Tenancy Act. But, it is open to the defendants to rebut this presumption and to establish, if they can, that the record as amended is erroneous. This aspect of the matter doss not appear to have been considered in either of the Courts below.

4. The result is, that this appeal is allowed, the decrees of the Courts below set aside and the case remanded to the Court of first instance for retrial. The Court will proceed on the assumption that the amended record is correct; but it will be open to the defendants to rebut this presumption. Each party will pay his own costs up to this stage of the proceedings.


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