1. This second appeal arises out of an application by the landlords under Clause (2) of Section 105 of the Bengal Tenancy Act for the settlement of fair rent in respect of certain land, described in an entry in a recent record of rights as kabil lagan. A fair rent was accordingly settled by the Assistant Settlement Officer. The defendants (the tenants) appealed to the learned Special Judge who allowed the appeal and dismissed the application holding apparently that it had not been shown by the plaintiffs that their claim to assess the land to rent had been made within the period permitted by the general law of limitation. His finding in other words is that the plaintiffs had failed to prove a title to support their demand for rent.
2. A preliminary objection has been taken to the present appeal that no second appeal lies under Section 109 A, Clause (3) of the Bengal Tenancy Act. In our opinion, the decision of the learned Special Judge is not a decision settling a rent. This objection, therefore, fails.
3. The principal point urged on behalf of the defendants, and the only contention on their behalf with which we need deal, is that the case being governed by the old law before the Amending Act of 1907 was passed, it was not open to the Courts below in dealing with an application under Section 105 of the Act to consider the question whether or not the land was subject to rent. In support of this contention, we have been referred to the case-of Shambhu Chandra Hazra v. Purna Chandra Pal 12 C.W.N. 122 and to an unreported decision of this Court in the case of Lachmi Narain Singh v. Babuan Pandey appeal from appellate decree No. 2082 of 1906. In view of these authorities, we think that the contention must prevail. The defendants took no independent steps to dispute the entry in the record of rights and it was not open to them to raise the question of their liability to pay any rent in answer to an application under Section 105.
4. An attempt was made on behalf of the respondents to argue that the application by which this case was initiated was not an application merely under Section 105 because there is a reference in it to Section 52 of the Act. The application may not be artistically drawn, but it appears to us to be an application under Section 105 and nothing else.
5. It may be mentioned in this connection that the learned special Judge seems to have thought that because the plaintiffs asserted in the application that the land was their kamat khud kasht, they were precluded from relying on the record of rights in which the land is entered as kabil lagan.
6. In our view the application may reasonably be construed as making a claim to the assessment of rent on alternative titles. The record of rights is referred to and founded upon. No doubt, the land is also described as khud kasht. But whether it was one or the other, the plaintiff is entitled to rent and it was open to the Courts to reject one of the titles put forward and accept the other.
7. Regard being had to the authorities we have cited, the decree of the lower Court must be set aside and the case remanded to that Court for the purpose of being reheard.
8. Costs will abide the result.