1. This is a second appeal from the judgment of the learned Special Judge of Backergunge, in which he held that he had no jurisdiction as a Revenue Court to fix a fair rent in respect of lands held by defendants-respondents in the zemindari of the plaintiff-appellant, inasmuch as those tenants were trespassers and the zemindar's only remedy was by the institution of a suit under Section 157 of the Bengal Tenancy Act, in which suit he can either eject the trespassers or have a fair and equitable rent determined by the Court.
2. A preliminary objection was raised that there was no second appeal in a case under Section 105 where there was a decision settling rent. But its is obvious in this case there was no decision settling rent, that the Special Judge declined jurisdiction, and the only question before us is whether this appeal should be remanded to the lower Appellate Court to be decided on the merits or whether the learned Judge was right in declining jurisdiction.
3. Now, the appellant bases his appeal on two very clear grounds. The first is that on an application under Section 105 of the Bengal Tenancy Act as it stood before the amendment as regards Eastern Bengal in 1908, neither the Assistant Settlement Officer nor the Special Judge had jurisdiction to decide whether the persons who are entered in the Settlement Record as ryots are ryots or not. He was bound to take the Settlement Record as he found it and if he was asked by a person who showed that he was the zemindar of the property which the ryots were occupying, he was bound to settle their rent if asked to do so; and in this connection, the case of Pandab Dowari Das v. Ananda Kishun Chakravarti 14 C.W.N. 897 : 7 Ind. Cas. 102 : 12 C.L.J. 195 was cited.
4. His second point was that assuming that it was open to the learned Special Judge to decide whether the persons who are occupying the land were tenants or not, he was in error in holding that the respondents are trespassers and not ryots. For this proposition, the judgment of Mr. Justice Steer in Nityanund Ghose v. Kishen Kishore (1864) W.R. Gap. No. Act X Rulings 82 was cited to show the distinction between the English and Indian law which has, undoubtedly, subsisted to this day. The decision of Chief Justice Garth in Surnomoyee v. Denonath Gir 9 C. 908 : 13 C.L.R. 69 following Lukhee Kanto Dass Chowdhry v. Sumeeruddi Lusker 21 W.R. 208 : 13 B.L.R. 243 (F.B.) and Rani Lalun Monee v. Sona Monee Dabee 22 W.R. 334 was also cited for the same purpose. The case of Azim Sirdar v. Ram Lall Shaha 25 C. 324 was also referred to in which Chief Justice Maclean says that tenancy in this country is created not only by contract but also by occupation in the case of agricultural land. It is true that he says that this principle of law has now been embodied in Section 157 of the Bengal Tenancy Act. That, of course, does not mean that every case where tenancy is created by mere occupation must come under that section and that all other legal remedies are shut off from the landlord. The Full Bench ruling in Binod Lal Pakrashi v. Kalu Pramanik 20 C. 708 seems conclusive upon that point; even if a person in occupation is settled on the land by a trespasser, such person is a ryot and whether he is an occupancy-ryot or a non- occupancy ryot will depend as usual upon the term for which he has been occupying the land. It is argued by the learned Vakil on the other side that this case can be distinguished because it held that the respondents in that case were non-occupancy ryots within the meaning of Section 5(2) of the former Tenancy Act and, therefore protected from ejectment by that Act But this part of the decision has, of course, nothing whatever to do with us. The part with which we are concerned is that a person who is settled on a certain land as a ryot and tenant by a trespasser does thereby become a ryot of some kind, and, therefore, when the zemindari is transferred by operation of law from one zemindar to another, he remains a ryot on the land; and if he is recorded by the Settlement Authorities in the Record of Bights as a ryot on the land, the zemindar is entitled to treat him as a ryot and is, in our opinion, entitled to ask the Revenue Court to settle a fair rent with him. The decision of the Civil Court that the plaintiff was the zemindar, was based upon the finding that the land upon which the respondents were settled was within the ambit of the village of Chalitabari and not within the ambit of the village of Delbari Debra as the respondents still allege in the present case. No doubt, the respondents, or at least not all of them, were not parties in that case, but the effect of the declaration of title of the landlord in that case plus the entry in the Record of Rights that these respondents are tenants within that zemindari concludes the question so far as the jurisdiction of the Settlement Officer is concerned.
5. That being so, the Special Judge could not enter upon any question except what was a fair rent for these ryots to pay, and we are further of opinion, as was argued by tile learned Doctor for the appellant, that the learned Judge has clearly fallen into error in that passage in his judgment, where he says that in order that the relationship of landlord and tenant might be established between the parties before him, the consent of both sides is essential. That may be the law in England, but it is not the law in this country; and this really leads to a third and more direct argument which seems to be fatal to the respondent's case, that there was a tenancy by mutual agreement created by the zemindar of Delbari Debra while he was in possession of the land in dispute and that the plaintiff merely stepped into the landlord's shoes when the High Court reversed the decision of the lower Appellate Court, so that from whatever point of view the case be looked at, we are of opinion that the Settlement Officer is bound to treat the respondents as ryots on the land, of the plaintiff and to fix a fair rent in respect of their holding.
6. The judgment and decree of the Special Judge are, therefore, set aside and the case is remanded to the lower Court for decision on the merits.
7. The respondents will pay costs of the appellant in this appeal.
8. This judgment will govern the analogous Cases Nos. 2389 to 2430, 2436 and 2445 of 1910.
9. We assess the hearing fee in this Court at one gold mohur in each case. The costs in the lower Courts will abide the result.