1. Tnis appeal, which arises out of a suit for enhancement of rent under Clauses (a) and (b) of Section 30 of the Bengal Tenancy Act, illustrates the shortcomings and difficulties of the enactment. The plaintiff is the appellant. The lands in suit belong to his Mehal Beldanga. In the time of his predecessor interest there were disputes between her and the tenants as to the rent and area of the holdings. The Magistrate of the district then intervened and the disputes were settled, the principal tenants executing niriknamahs at certain rates. Among them the defendant executed furdit in respect of 68 bights, 17 kattas and odd in his possession, agreeing to pay rent at Rs. 63 6 9 on the basis of the niiiknamah. He also exeauted a kabuliyut in favour of Meharani Swarnamoyi, the predecessor, on the basis of which he paid rent up to 1308. On default made, the plaintiff instituted rent-suits on the strength of the kabuiiyat, which was held invalid by this Hon'ble Court as being in contravention of Section 29 of the Tenancy Aot. During the pendanoy of the appeals in the High Court, Record of Right was prepared in respect of that mehal which was finally published on the 24th January 1908. In such record the defendant was entered as a settled rayiyat and the rent at Rs. 32-10-3 and the area was found to be 39 bighas, 4 kattat and odd. Thereupon, the tenants made an application under section of the Bengal Tenancy Act on the 28th March 1908 anticipating the plaintiff's objections. The plaintiff made an application on the 24th April 1908 under section of the Bengal Tenancy Act to rectify the record. His application was rejected. He claimed rectification on the ground that he was entitled to the kabuliyat rent, and if not 30, to an enhancement of the original rental to the extent of two-annas in the rupee. The High Court decision in the rent-suits was given on the 1st June 1908 whereupon the tenant withdrew his application under Section 105, on the 23rd June 1908. In August of that year the Revenue Officers disallowed the plaintiff's application, whereupon this suit was instituted. It was urged by the defendant before the learned Munsif that Sections 37 and 113 of the Bengal Tenancy Act barred the present suit. Ha held against such contention.
2. The learned District Judge, on appeal, agreed that Section 37 was not a bar, but held that Section 113 clearly barred the present suit. Hence this appeal.
3. It has been contended before us, as it was contended before the first Appellate Court, that the Record of Rights merely dealt with the existing rent of the land and that the Settlement Officer was not competent to settle a rair and equitable rent until an application under Section 105 was made to him. Section 106 deals with the rectification of records and that is what was sought by the plaintiff: he did not in that application, as he could not, apply to have a fair and equitable rent settled He did not make any application under Section 105 for settlement of rent. During the proceedings under Section 106, the tenants who had applied under Section 105 withdrew their applications, as the High Court had decided in their favour, It was urged on behalf of the tenant that the present suit was barred under Section 113. He contends that the rent of his holding was 'settled' under Chapter X, when the plaintiff's application under Section 106 was rejected and the entry in the record was maintained: that it settled the dispute about rent and must be considered as a settlement of the rent. The wording of Section 113 is capable of that interpretation, but it involves an absurdity, Section 102 lays down what particulars are to be put down in the record. One of such particulars to be put down is 'the rent payable at the time the Record of Rights is being prepared: 'Section 102, Clause (e). It cannot be contended that the Settlement Officer can at that time settle what ought to be assessed as fair and equitable rent. The section undoubtedly empowers the Settlement Officer to settle the existing rent cutting down illegal exactions, if any, and disallowing any amount imposed in contravention of the Act. The expression used in Clause (e) is 'rent payable' which is certainly loose. The Tenancy Act was amended, and Section 105 A was added by Bengal Act 1 of 1907, Section 106, which was a substitution for the original as contained in Bengal Act of 1903, was again amended in 1907 by an additional provision--namely, the last clause. Section 105A was added to include decisions on certain questions arising during the course of settlement of rent under Chapter X; but we think, having regard to the scheme of the preparation and publication of the record, it cannot be contended that a rectification of the record of the nature sought by the plaintiff can be considered as settlement of rent precluding a suit. No claim for settlement of rent under Section 30, Clauses (a) and (b), was made in the application before the Settlement Officer under Section 106 and could not have been made. Section 105 is a special provision. It cannot be said that a person who does not make an application under that section is debarred from bringing a suit. It is unnecessary to refer to the cases cited which do not deal directly with the point, but deal with the distinction between Sections 105 and 103. We do net think that the learned Judge was right in holding that the present suit was barred. We hold it is maintainable. As the learned Judge has not dealt with the other points in the appeal before him, we think the appeal should be remanded for further hearing. The defendant will pay the plaintiff his costs of this appeal.