1. These appeals arise out of the judgment of the Special Judge at Bhagalpur in suits under Section 105 of the Tenancy Act.
2. There were also two Rules issued in case it should be held that there was no appeal. We are inclined to hold that there is no appeal as regards the finding that the present rent must be maintained inasmuch as the plaintiff has failed to prove any excess.
3. In the case of Rameshwar Singh v. Bhooneswar Jha 4 C.L.J. 138 : 33 C. 837, it was laid down in a case, where enhancement was claimed on both the grounds on which it is claimed here, that when the Special Judge holds in such a case that no case has been made out for enhancement on any of the grounds stated in the application, this is a decision settling a rent within the meaning of Section 109(3) of the Act and consequently no second appeal lies to the High Court. In the case of Haj Kumar Pratap Sahay v. Ram Lal Singh 5 C.L.J. 538, to which one of us was a party, this case was distinguished but not dissented from and although the ratio decidendi appears at first sight to be that, where the Special Judge merely proceeds on the ground that there was no excess land and, therefore, no rent to be settled, an appeal lies, it must be taken to be an exceptional case depending on the very narrow single issue that was raised in that case and not governing a case like the present where the Special Judge has held that the plaintiff has failed to establish his grounds for asking for a settlement of rent at a higher rate. It is conceded that no appeal lies from the finding that there has been no rise in the price of staple food crops during the currency of the rent but it is urged that the ground which the learned Special Judge has taken, namely, that there has been a splitting up of the tenancy and hence there is no currency of the former rent is not a decision on the merits, but a defective exercise of jurisdiction and hence open to revision under the rule issued on that ground. It is contended that the learned Judge has followed the authority of Uday Chandra v. Nripendra Narayan 1 Ind. Cas. 4 : 36 C. 287 : 13 C.W.N. 411, to which one of us was a party and not considered the case of Madhumala v. Alfazaddi 13 C.W.N. 962 : 10 C.L.J. 45 : 2 Ind. Cas 415, where the opposite view was taken although the Judges in the latter case did not consider the former.
4. In the case of Mulluk Chand Das v. Satish Chandra Das 11 C.L.J. 56 : 14 C.W.N. 335 : 3 Ind. Cas. 306, however, Mookerjee, J., who was a party to the latter ruling, has considered both cases and it was laid down that, when the lands of a tenancy have been subdivided, if a question arises whether new tenancies have been created, the answer must depend upon the intention of the parties; no inflexible rule apart from intention can be laid down. Now in this case not only has the lean ed Judge formed no opinion as to the intention of the parties in splitting up the tenancies but he bas omitted to deal with the further question whether, even if the tenancies have been so split tip as to prevent the landlord suing for rent on the original jama, which, seems to be the test applied in Mulluk Chandra Dans case 11 C.L.J. 56 : 14 C.W.N. 335 : 3 Ind. Cas. 306, there has been any change in the currency of the rent.
5. This we think is a question wholly independent of the other question whether the landlord can still deal with the split up tenancies as a single jama and the Judge has certainly failed to exercise his jurisdiction in not coming to any finding thereon. The case in Rule No. 8786 appears to be that of the original tenants giving up part of their holding, which was settled at the same rate of rent with a not her tenant. The casein Rule No. 8785 appears to be that of four co-sharers holding a single jama who by a species of partition with consent of the landlord have each taken one-fourth of the original holding at the same rate of rent as before. In Rule No. 8786, therefore, the second question we have indicated alone arises and ought to be decided, while in Rule No. 8785 both questions seem to arise. There is, however, a further reason for revision in this case. The defendants asserted a claim to he ryots at fixed rates and though the Assistant Settlement Officer held that claim to be frivolous and it was not further dealt with by the Special Judge, as it did not arise in the view he took of the case, it raises a question of status, and on the authority of the Full Bench ruling in Prithi Chandra Lal Chowdhry v. Basarat Ali 37 C. 30 : 13 C.W.N. 1149 : 3 Ind. Cas. 449, such a question could only be decided under Section 106 and if it arose would lay the whole case open to appeal.
6. Whether it did arise or whether the Assistant Settlement Officer's finding that it was altogether a frivolous plea is correct, is a question which must be decided by the learned Special Judge. The matter not having gone beyond the Court of first instance cannot: be dealt with by us and the appeals and motions before us being by the plaintiff the question did not arise in argument before us, but as the case has to go back there must be a finding unon that issue as well.
7. The result is that the Appeals Nos. 1247 and 1248 are dismissed without costs and the Rules Nos. 3786 and 3785 are made absolute with costs which we assess at one gold mohur in each case. The costs in the lower Courts will abide the result.