1. This appeal arises out of a suit for recovery of rent.
2. The plaintiffs-appellants alleged that the defendants held a tenure consisting of 1752 bighas of land at a rent of Rs. 915-12-6 under them, and the rent for the years 1321 to 1324 was claimed in the suit.
3. The main defence was that the tenure consisted of more than 2000 bighas of land, that the plaintiffs had let out about 600 bighas of land out of the lands of the defendants' tenure, to one Gobinda Mandal who had dispossessed the defendants from a portion of the tenure; that rent had also been realised on plaintiffs' behalf from some of the defendants' tenants on the land, and that the rent payable for the tenure should, therefore, be suspended. The Courts below have concurred in dismissing the suit, and the plaintiffs have appealed to this Court.
4. Three contentions have been raised on behalf of the appellants. The first is that the Court below is in error in holding that the disputed land was included in the defendants' tenure, and that it had misconstrued the defendants' pottah, dated the 7th March 1839, in so holding. The southern boundary of the lands of the tenure in the pottah was 'khas land.' It was the case of both parties that 'khas land' meant the khas land of the Government, but they differed as to the location thereof. The Court below has elaborately discussed the question and has found that the disputed land was all along treated by the plaintiffs and their predecessors as being included within the defendants' tenure, that rent was assessed upon the disputed land in accordance with the stipulation in the lease, and realized, that the defendants through dargantidars and other tenants had been in possession of the disputed land from the very inception of the tenancy, and that the contractual rights and obligations of the parties under the lease were not affected by the subsequent settlement of some of the disputed lands taken by the plaintiffs in 1908 from the Government. It has also found upon the evidence that the plaintiffs dispossessed the defendants from the disputed lands by realising rents from the defendants under-tenants, and by granting a lease to a third party with respect to a portion of the defendants' tenure. We are of opinion that the pottah has been rightly construed by the Court below, and the above finding cannot be challenged.
5. The second contention is that the defendants acquiesced in the dispossession, and reliance is placed upon the mortgage-bond, Ex. I, executed by the defendants. But the circumstances under which the mortgage was executed have been stated by the defendants and the statement has been accepted by the Court below.
6. The last contention is that the entry in the Record-of-Rights which shows that Rs. 820-1-6 was the rent settled for the defendants' tenure of 1752 bighas and odd is conclusive not only as to the rent, but is also conclusive as to the area of the tenure under Section 104 J of the Bengal Tenancy Act. That the rent settled under part II of Ch. X of the Bengal Tenancy Act is conclusive under Section 104 J, has been held in a number of cases, but the question is whether an entry in the Record of Rights other than the entry as to the rent settled is conclusive.
7. In the case of Ambica Charan Chakravarti v. Joy Chandra Ghosh 4 Ind. Cas. 470 : 13 C.W.N. 210 plaintiff sued for rent at the rate of Rs. 20 at which it was settled in the settlement proceedings, and the defendant having relied upon a pottah granted before the settlement, and which fixed the rent at Rs. 3-2-0, it was held that the settlement of rent having been made under part II of Ch. X of the Bengal Tenancy Act, the entry as be the rent was conclusive under Section 104 J of the Act. The learned Judges pointed out the distinction between Sections 103 B and 104 J, and observed that, 'Section 104J applies to the rent-roll alone; and to no other part of the Record of-Rights'. No question, however, arose in that case other than as to the rent settled.
8. In the case of Prosanna Kumar Adhekari v. Rachimuddin 15 Ind. Cas. 327 : 17 C.W.N. 153 there was a kabuliyat in respect of 96 bighas at a rent of Rs. 220 with a stipulation for payment of additional rent if the tenant was found to occupy more land than was specified in the kabuliyat. Subsequently there was a Record-of-Rights, and according be it the defendant was found to hold 117 bighas but the rent was fixed at Rs. 220. The Plaintiff having sued to recover rent for the 117 bighas at a rent of Rs. 268, it was held by Carnduff and Chapman, JJ., that the entry settling the rent was conclusive and observed: 'It appears that a suit was brought under Section 104H in respect of the description of the defendant in the Record-of-Rights, and the description was altered from that of an occupancy raiyat to that of an under raiyat, but no attempt was made under the provisions of Section 104 to 104F to alter the entries as to the rental and the area. The latter entries are, therefore, in the view we take of the section, conclusive and this we may remark was the view taken by Stephen and Doss, JJ., in Ambica Charan v. Joy Chandra 4 Ind. Cas. 470 : 13 C.W.N. 210.'
9. It is to be noted that in Prosonna Kumar's case (2), the learned Judges observed that the 'latter entries' (which related to both the area and the rent) are conclusive. But the area was not in dispute in that case; only the rent was in dispute.
10. In Baikuntha Nath Ghora v. Prasanna Kumar Mohapatra 48 Ind. Cas. 287 : 23 C.W.N. 516 a rent suit was brought in respect of two tenancies in accordance with the Record-of-Rights. The defence was that the Settlement Officer had re-arranged the holdings and the two holdings were not held as they were originally, but they were different holdings although the same amount of land was comprised in the two holdings. It was argued for the tenant in that case that, although he may not be able to question the amount of rent, he may show that the land is not correctly stated in the Record-of-Righbs and that, therefore, he is not liable be pay the rent which had been deemed to be correctly stated. But Fletcher, J., observed: 'That seems be me to be quite impossible on the wording of the section. Correctness of the rent means that the amount of rent is correct with reference to the amount of land entered, in the record. It is shown quite clearly by Section 104 H, Sub-section (3)(d), in giving one of the grounds on which a suit can be instituted by a person who is aggrieved by an entry of a rent settled in a settlement rent-roll. It is quite impossible to say that when the rent is deemed to be correctly settled the tenant can go behind the record and show that the record is wrong.' It is to be observed that, in that case, the correctness of the area entered in the Record-of-Rights was challenged for showing the incorrectness of the entry as to the rent, which could not be allowed having regard to the provisions of Section 104J.
11. The learned Pleader for the respondents has strongly relied upon the observations quoted above. It is true that the rent of a tenancy is settled with reference to the lands comprised therein, and Clause (d) of Section 104H provides for a suit being instituted on the ground, among others, that the land has been wrongly omitted from the land of a tenancy. But the decision of such question appears to be only incidental to the question of settlement of rent. In the case of Joqendra Nath Singh v. Secretary of State 17 Ind. Cas. 921 : 17 C.w.N. 835 : 16 C.L.J. 385 the scope of a suit under Section 104H was considered, and the learned Judges (Mookerjee and Holmwood, JJ.) observed: 'No doubt, the Court with a view to determine the question whether the entry of rent as settled is erroneous or whether there ought to be an entry of settlement must incidentally examine the grounds assigned by the plaintiffs as set out in the six clauses of Sub-section (3) But the Court cannot be called upon, in a suit under Section 104H, be make an express declaration upon any of the six matters mentioned in the Sub-section.'
12. In the case of Profulla Nath Tagore v. Secretary of State for India 63 Ind. Cas. 892 : 26 C.W.N. 100 the revenue officer in settlement proceedings settled the rent of the lands on the basis of the rent payable to the proprietor ignoring the existence of a tenure and certain holdings purchased by the proprietor in execution of decree for arrears of rent. It was found that the tenure had not merged in the proprietary interest, and the raiyati holdings (purchased before the amendment of the Bengal Tenancy Act in 1908) did not cease to exist. The Courts below held that the Court had no jurisdiction to settle the rent of the tenure and holdings. One of the members of this Bench (Chatterjea, J.) and Panton, J., held that a suit could be maintained on the grounds (d) and (e) of Section 104H, and that under Sub-section (4) of that section the Court had the power to settle the fair rent payable by the plaintiff as the holder of the tenure and the holdings. A declaration was made as to the right of the plaintiff as tenure-holder and raiyat. The declaration was, however, unnecessary, as it was only incidental to the settlement of fair rent, and for which purpose the case was remanded to the lower Court. The question whether such a declaration could be made in a suit under Section 104H does not appear to have been raised in that case, nor does the case of Jogendra Nath Singh v. Secretary of State 17 Ind. Cas. 921 : 17 C.W.N. 835 : 16 C.L.J. 385, appear to have been brought to the notice of the Court.
13. In Prafulla Narain Majumdar v. Palku Mohammad 53 Ind. Cas. 122 : 23 C.W.N. 860 two suits for rent were brought for two holdings, one at the rate of Rs. 50 and the other at the rate of Rs. 30-10-0. The Record-of-Rights showed a jama of Rs. 30-10 only. Subsequently a decree for rent for Rs. 50 was obtained ex parte, but it was found that the decree had been obtained by keeping back the Record-of-Rights, and that it was improbable that one of the jamas under the plaintiff had been omitted from the Record-of-Rights. It was held by Fletcher, J., and one of the members of this Bench (Cuming, J.), that Section 104J precluded any evidence being given to contradict the statement as to rent mentioned in the Record-of-Rights where a settlement rent roll had been prepared under the provisions of Sections 104A to 104F. It is true that a question arose as to whether there were two jamas, and it was held that there was only one, relying upon the Record-of-Rights, but the actual decision proceeded upon the ground that the entry as to the rent settled could not be contradicted. In any case, there was no express decision that any entry other than of the rent settled was conclusive. In the case of Profulla Nath Tagore v. T.C. Tweedie 65 Ind. Cas. 234 : 36 C.L.J. 14 : (1922) A.I.R. (C.) 248 the conclusive character of an entry as to the rent settled was recognized and the question whether an entry in the Record of-Rights other than as to the rent settled is conclusive was referred to but was not decided. The question in that case was whether having regard to the contract between the parties the landlord was entitled to any rent in respect of the diarah portion (of a big tenure held by the defendant) which was resumed by Government and settled with the landlord the rent whereof was settled in the settlement proceedings and the decision proceeded upon a consideration of the provisions of Section 192 of the Bengal Tenancy Act. In the last reported case on the point, Pratap Chandra Jana v. Secretary of State for India in Council 67 Ind. C. 375 : 35 C.L.J. 304 : (1922) A.I.R. (C.) 101 : 49 C. 1026 it was held by Mookerjee, J., and one of the members of this Bench (Cuming, J.) that when a settlement of rent has been made under Part II of Ch. X of the Bengal Tenancy Act, the entry in the Record-of-Rights is conclusive unless altered by means of a suit instituted under Section 104H, In that case there was no question of the conclusiveness of the area or any entry other than of the rent settled. In the unreported decision of Richardson and Suhrawardy, JJ., (9) all that appears to have been decided was that the rent settled could not be challenged by showing the incorrectness of other entries in the Record-of-Rights.
14. It will be seen that the decisions are agreed that an entry as to the rent settled is conclusive under Section 104J. It may also be conceded that other entries in the Record-of-Rights upon which the rent is settled cannot be challenged so as to affect the rent settled i.e., in so far as they bear upon the rent settled and for that purpose only. The fact that the suit under Section 104H is to be instituted on the grounds mentioned in that section by a person aggrieved by an entry of a rent settled indicates that the other entries in the Record-of-Rights can be challenged under that section only for the purpose of showing the incorrectness of the entry as to the rent settled. But whereas in the present case, the question in controversy is not as to the rent payable but the quantity of land included in the tenure, the determination of which is necessary not for deciding the amount of rent payable for the tenure, but for deciding the question whether the rent should be suspended because the defendants had been dispossessed from a portion of the tenure, we think the entry as to the area is not conclusive under Section 104J. Section 104J lays down:'Subject to the provisions of Section 104H, all rents settled under Sections 104A to 104F and entered, in a Record-of Rights finally published under Section 103 A or settled under Section 104G shall he deemed to have been correctly settled and to be fair and equitable rents within the meaning of this Act.' The Section refers in terms only to rents settled and does not refer to any other entry in the record, and although a suit may be instituted under Section 140H, Clause (d) on the ground that land has been wrongly recorded as part of a particular estate or tenancy or wrongly omitted from the lands of an estate or tenancy, the decision of such question as pointed out in Jogendra Nath Singh v. Secretary of State 17 Ind. Cas. 921 : 17 C.W.N. 835 : 16 C.L.J. 385 is only incidental to the determination of the question whether the entry of the rent as settled is erroneous. If the contention that as the rent of a tenancy is settled with reference to the area comprised in the tenancy, the entry as to the area as well as the rent should be held to be conclusive even in cases where the rent is not in dispute were accepted, we must hold that other entries in the Record-of-Rights, such as an entry as to the status of the tenant (with reference to which also the rent is to be settled) is also conclusive even where the rent is not in dispute. Having regard to the express terms of Section 104J which refers only to the rent settled, we are of opinion that the entry as to the area is not conclusive for the purpose for which it is sought to be so used. Such an entry no doubt raises a presumption of correctness under Section 103B, but the Court below has found against the entry upon the evidence.
15. We are accordingly of opinion that the appeal must fail, but we make no order as to costs of this appeal.