1. This appeal arises out of a suit for rent. The holding of the defendant tenants is situated partly within the limits of a revenue-paying mahal and partly within a nowabad taluk. The plaintiffs claimed rent at the rate of Rs. 3-8 on account of the lands lying within the mahal and at the rate of 50 arts of paddy on acount of the lands lying within the nowabad taluk. The defendant tenants' case was that the jama payable on account of the land lying in the nowabad taluk was at a cash rate as settled by the Revenue Officer. In regard to the lands lying within the mahal there is no longer any dispute and no question relating to the rent of those lands is before Rs. Both the lower Courts decreed the plaintiffs' suit at the rate claimed by them. The defendant tenants appeal.
2. The question for our decision is whether the rate of rent for the nowabad land should be at 50 arts of paddy, which is the rate in the kabuliat of the year 1891, or at the cash rate entered in the khalian of 1898. The lower Courts have both treated this entry in the khatian as an entry showing a settlement of fair and equitable rent. They have, however, held that the Settlement Officerhad no jurisdiction to settle a fair and equitable rent having regard to the terms of Section 192 of the Bengal Tenancy Act, which at the time when the entry was made only permitted a settlement of rent upon an application by the landlord or by the tenant. No such application had been made in the present case. The lower Courts disregarded the entry in the khatian partly upon this ground and partly upon the ground that the khatian had been shown to be incorrect.
3. With regard to the first ground, namely, the ground of jurisdiction, the lower Courts appear to have fallen into an error. Section 104 of the Bengal Tenancy Act enables the Revenue Officer to settle a fair and equitable rent for tenants of every class in cases falling under Clause (d) of Section 101(2). That is to say, when, as in this case, the Record of Rights was being prepared under Chapter X of the Bengal Tenancy Act, the settlement Officer could under the Act, as it stood in 1893, of his own motion make a settlement of fair and equitable rent in cases where a settlement of land revenue was being or about to be made. Now nowabad land is land which forms part of a Government estate, and it being included in the area for which the Government had directed the preparation of the Record of Rights it may be presumed that the rents due to Government on account of nowabad lands were being settled in the course of the preparation of that Record of Rights. Rent payable to Government for land in a Government estate is land revenue. The present case, therefore, was one in which settlement of land revenue was being made within the meaning of Section 101(2)(d) and it was open to the Settlement Officer to make settlement of fair and equitable rents for tenants of every class under the old Section 104. No application by tenant or landlord was necessary. Upon reference, however, to the khatian which the appellants relied upon, we find that as a matter of fact no fair and equitable rent was actually settled. The entry of the existing rent is at the rate of Rs. 8-12. The entry in the column showing fair and equitable rent settled is also Rs. 8-12. It is quite clear, therefore, that the Settlement Officer retained what he thought to be the existing rent and made no settlement of fair and equitable rent. Now the entry in the khatian showing the existing rent to be Rs. 8-12 was according to the case of both sides a wrong entry. The existing rant as proved by the plaintiffs' kabuliat was at the rate of 50 aris of paddy. The entry in the khatian has been shown to be wrong. The entry not being, as we have shown above, a settlement of fair and equitable rent it was open to the plaintiffs to prove that the entry was incorrect. The lower Courts were, therefore, right in holding that the rent due from the tenants for the nowabad land was at the rate of 50 aris of paddy as proved by the kabuliat. The appeal is dismissed with costs.