1. These two appeals arise from two rent suits which were decided by one judgment. A third appeal from the same judgment has abated. The landlord is the appellant.
2. The facts are as follows. There was a Record of Eights prepared and finally published. In it the respondents were shown as the owners of separate jotes, each jote bearing a separate jama. The landlord made an application under Section 105 of the Tenancy Act for the settlement of fair rents. Then one Osman Ali put in an application under Section 106 alleging that his jote and the jote of the respondents formed part of a parent jote, which had been held at a uniform rate of rent for so long that the holders were entitled to the presumption arising under Section 50 of the Act. The respondents did not join in that application or make similar applications, but they were made pro forma defendants. The hearing of the applications under Section 105 was stayed until the disposal of the application under Section 106, and the reason alleged by the respondents for seeking a stay was that the case under Section 106 would dispose of the question whether the rents were fixed or not and this argument, I understand, was not challenged on behalf of the landlord. The application under Section 106 was dismissed for default, but later it was revived, and it was decided eventually in favour of Osman Ali. Unfortunately between the date of its dismissal for default and the order for restoration, the applications under Section 105 were taken up, and fair rents were fixed, such rents being higher than the rents entered in the Record of Rights. It is for these fair rents that the present suits have been brought. The Court of Appeal below has held that the plaintiff cannot recover more than the, old rents. The object of the landlord's appeals is to obtain decrees for the fair rents fixed in the proceedings under Section 105 of the Act.
3. It is argued for the plaintiff that these particular respondents made no applications under Section 106, that they might have appealed against the orders settling fair rents or applied for revision and that the Revenue Officer's decision has under Section 107 the force and effect of a decree of a Civil Court in a suit between the parties. These criticisms are correct but I think we are entitled to go below the surface to actual position taken up by the parties. To my mind it is clear that by mutual consent the question whether the rents could be enhanced or not was to be settled in Osman Ali's application and had the Revenue Officer been apprised of the fact that steps had been taken to have that application restored the would not have proceeded with the applications under Section 105. The fact that he was not informed is not due to any fraud on the part of the landlord or any negligence on the part of the tenants, but to the confusion, which inevitably results from the immense volume of work, with which a Revenue Officer has to do deal. Consequently the matter should be looked at from the position which the parties would have occupied if the true facts had been made known to the Revenue Officer.
4. As the question of enhanceability has been decided in the tenant's favour, I think the reasonable view of the situation is that taken by the learned Judge in the lower Court. This view was taken by another Bench of which, I was a member.
5. I think therefore, that the appeals should be dismissed, but in the peculiar circumstances I would lead each party; to bear its own costs.
6. My learned brother unfortunately takes a different view and he would allow the appeals. In these cases my opinion must prevail, whether we proceed under the Letters Patent or under the Code.
7. The result, therefore, is that the appeals are dismissed, each party bearing his own costs.
8. I have had the advantage of perusing the judgment just now delivered by my learned brother. I regret very much that I have not been able to agree in the orders which he has passed in these two appeals.
9. My difficulty arises from the clear provision of Section 107 of the Bengal Tenancy Act which attaches finality to decisions under Section 105 of that Act. I am unable to construe the consent of the plaintiff to the adjournments of the cases under Section 105 as an admission on his part, even by implication, that the decision in the case under Section 106 would govern those cases.
10. In one of these cases, viz., Case No. 1702 of 1913 which relates to S.A. No. 2563 of 1921 there was a clear order of the Revenue Officer that the decision in the case under Section 106 would not apply to it. The reason for that order was that the case under Section 108 was with reference to a different khatian. It should be observed that that case related to Khatian No. 351 while the three applications under Section 105 (two of which relate to the present appeals; and the third one to S.A. No. 2561 of 1921 which has already been dismissed on the ground that it had abated) related to Khatians Nos. 328, 334 and 345. This reason, therefore, applies to the other cases as well. It may be, as found by the learned Subordinate Judge, that the jotes in the present suits are parts of the same Chemeru Chandura jote, to which the Jote of Osman Ali belongs. It is true that the respondents were pro forma defendants in the case under Section 106; but they were impleaded only because portions of the Original jote were in their occupation. The real point decided in that case, however, was the fixity of rent and the character of Osman Ali's jote; and there was no decision with regard to the jotes of the respondents. It does not appear that either in the case under Section 106 or in the cases under section, 105, the respondents ever pressed their objection that the rents of the jotes were not liable to enhancement or took any steps to get them declared mokarari. I do not, therefore, see how the decision in the case under Section 106 can be of any avail to the respondents so long as the decisions, under Section 105 stand and so long as they are not found to have been vitiated by fraud. When the decisions have not been set aside by one or other of the modes recognised by law, effect must, in my opinion, be given to them.
11. Substantial, justice perhaps will be done by the orders which my learned brother has passed in these appeals. I am, however, unable to dismiss them in view of the law as it stands. In my judgment these appeals should be allowed, the decrees of the learned. Subordinate Judge reversed, and those of the learned Munsif restored with costs. In view of the peculiar circumstances of these cases I would make no order as to costs either in this Court or in the Court of Appeal below.
12. There remains the question as to what should be the result of this difference of opinion. The question is not free from difficulty. On the one hand there is the practice, uniform and unvaried, followed by all the High Courts in India so far as appeals under the Civil Procedure Code are concerned ever since the provision corresponding to Section 98 of the Code of Civil Procedure was embodied in the law of Civil Procedure of acting under the said provision; and on the other hand there is the decision of the Judicial Committee in the case of Bhaidas Shivdas v. Bai Gulab 60 Ind. Cas. 822 : 25 C.W.N. 605 : 40 M.L.J. 519 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7; (1921) M.W.N. 408 : 29 M.L.T.350 : 45 B.718 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.) that Clause 36 of the Letters Patent should apply, a decision the wording of which does not suggest that the clause should apply only to Original Side Appeals and appeals under the Letters Patent and not to appeals under the Code of Civil Procedure. It would serve no useful purpose to enter upon a discussion of the authorities bearing upon the question. They have been exhaustively and elaborately discussed and all conceivable arguments, pro and can, have been considered in the judgment of Suhrawardy, J. in Appeals from Orders Nos. 19 and, 20, of 1923. Speaking for myself I doubt very much that their Lordships of the Judicial Committee intended their decision to be of such far reaching consequences as to upset the settled practice which has obtained in this country close upon half a century. The fact that only three cases have been referred to in their Lordships' decision as showing that the application of Clause 36 of the Letters Patent was not a novel idea and that all the three cases are clearly cases where the provisions as now contained in Section 98 of the Civil Procedure Code could not possibly apply confirms me in my doubt. It is well-known, however, that there is a diversity of judicial opinion with regard to this matter. My learned brother, I find, has taken a contrary view in the appeals referred to above.
13. It is unnecessary, however, to pursue the matter further on the present occasion, because it would make no practical difference in result so far as these appeals are concerned, whether the one or the other view is adopted.