Ewart Greaves, J.
1. These appeals are appeals by the tenants in suits by their landlord, under the provisions of Section 105 of the Bengal Tenancy Act, claiming additional rent in respect of additional area. The Assistant Settlement Officer in the First Court decreed the suits and held that for measuring the additional lands a pole or nal of 16 cubits should be employed, the landlord appealed against the decisions of the Assistant-Settlement Officer in so far as he decided that the pole or nal to be employed for measurement should be a pole or nal of 16 cubits. The landlord's contention. was that according to the true construction to be placed upon the dowl in the various suits the pole or nal to be employed was one of 14 cubits and the Special Judge who heard the appeals has agreed with this contention. These appeals are directed against this decision and this is the only point which arises in these appeals. The Special Judge disposed of all these appeals by reference to a judgment which he gave in another case, which is not under appeal, in which the same point arose and he has incorporated that judgment in his judgments in all the cases from which these appeals arise. The dowls in all the cases are, we are told, substantially the same and the appeals have been argued on this basis but the Doivls bear different dates between the years 1259 B, Section and 1280 B. Section and in Appeals Nos. 1476, 1477, 1801, 1802 and 1893 of 1922 the dowls bear date before the year 1267 B. Section The two appeals first argued before us were Nos. 419 and 420 of 1932 so it will be convenient to refer to the Dowls 61 these two appeals.
2. Those who appeared in the other appeals all adopted the arguments advanced on behalf of the appellants in Appeals Nos. 419 and 420 of 1922 and in some cases supplemented these arguments but although in some cases reference was made by them to the dowls of their particular appeals it was not suggested that there was any material difference in the Dowls so as to affect the point arising in these appeals.
3. The dowl kabuliyat in Appeal No. 419 of 1922 is dated the 11th Magh 1259 (23rd January 1853) and the interest thereby created is a taluki interest. The Dowl refers to the land being settled as being khas mehal in own cultivation (mehal khas khod khasta) in possession of self and measuring, according to the measurement of 1249-1256 B. Section made by a pole of 16 cubits of 18 inches each, 4 kanis odd. Some discussion arose as to the meaning of the words khod khasta 'in own cultivation' and it was suggested that it meant that the intermediate interest, that of the talukdar, having come to an end the tenants on the land were paying their rent direct to the zemindar but there is no evidence of this and we must, I think, take the words as meaning that the lands were being cultivated by the zemindar either through ryots or by hired labour. The words cannot be strained to mean of necessity cultivation by ryots.
4. The document further states that the land was surveyed by the Amin during the Ekandaz Survey as appertaining to khod khasta and that it was measured by a pole of 16 cubits of 18 inches each, and found to measure 5 kanis odd. The document concludes with these words which have caused the present controversy.
6. If on fresh measurement excess land be found I (that is the tenant of the taluk) shall pay separate rent for the same according to the khod khasta nal and khod khasta rate of the Pergana.
7. It will be convenient to state again the point in controversy which arises on these words. The appellant tenants contend that 'khod khasta nal' means the nal or pole of 16 cubits used in the previous measurement of 1249-1256 and also used, at the time this dowl was executed; the. landlord-respondent contends that the words 'khod khast' nal mean a ryoti nal or pole of 14 cubits.
8. The Special Judge has, as already stated, accepted the landlord's contention finding that the words 'khod khast ' in the expression, 'khas khod khast' in the early part of the dowl has not the same meaning as the word ' khod khast ' appearing in the concluding words of the Dowl before the words ' pole ' and 'rate.' He says that if it had been intended to measure excess lands for the purpose of assessing additional rent with a 16 cubit nal (which was the nal used for measuring taluks) there would have been no need to use the words that the excess area would be measured with khod khat nal and assessed at khod khasta rate and he holds that these words mean the pole and rate applicable in the case of cultivating ryots.
9. He concludes his judgment by recording this finding 'on a consideration of the entire evidence, oral and documentary, I hold that khod khast nal meant the nal applicable to ryots and such nal was 14 cubits of 16 inches.' It was not suggested before us that if evidence was admissible to prove the meaning of 'khod khast' there was no evidence to support this finding although it was suggested that there was no finding that in 1259 B. Section there was any ryoti nal in their zemindari. Of course in second appeal, not having ourselves seen the evidence, we must in default of any contention to the contrary assume that there was evidence to support this finding. I cannot, however, but think from a perusal of the judgment of the Special Judge that he has relied on some evidence which should not have been relied on. I mean by this to refer to his reference to other dowls, for clearly the language of other documents not in suit cannot be called in aid to construe the words of a particular document which is in suit.
10. If the question to be decided in these appeals is a question of fact this finding is binding on us in second appeal but if the question is one to be determined on the construction of the dowls alone this is a question of law and falls for us to decide.
11. The Special Judge has referred in his judgment to a previous decision of this Court in Appeal from Appellate Decree No. 2468 of 1886 and this has been pressed on us on behalf of the appellants as having already decided the point arising in these appeals and it will be convenient to refer to it now.
12. The question there was the same as arises in these appeals, namely, the size of the measurement pole to be used in measuring excess lands held in Talukdari Seltlement. The dowl in that case which was of 1267 B.S. contained this provision.
13. Should upon fresh measurement the area of the land be found to be in excess of that specified in the lease, we shall pay rent for the same separately at the Fergana khod khast rate and standard of measurement.
14. It was contended in that case on behalf of the landlord that the standard of measurement used for ryots should be applied whilst the tenant-defendant contended that the standard of measurement should be the same as that applied in ascertaining the area of the taluk.
15. This Court accepted the tenant's contention. The Court was influenced in its decision by the fact that the acceptance of the landlord's contention involved applying one standard of measurement to ascertain if in fact there was excess area and if excess area was found another measurement in order to ascertain the area to be assessed to rent but the main ground for the decision was the finding of fact of the District Judge that the standard of measurement for ryots was not settled in, the zemindari until some years after the dowl in suit which was dated 1267. It seems to me, therefore, that this decision does not help us as it was really arrived at upon the finding of fact arrived at on the evidence in that case. Moreover we have not the dowl which was in suit before us and we do not know what it contained apart from the passage cited in the judgment. The main contention urged on behalf of the tenants in these appeals was that the Special Judge was wrong in saying that the word khod khast at the end of the dowl meant something different from the meaning to be attributed to the word in the earlier part of the dowl and it was urged that as a 16 cubits pole was used in measuring what was described as khod khast land at the time the dowl was executed, the words 'accorling to the khod khast nal' must mean that the same standard of measurement was to be applied for: the purpose of measuring any excess land for the purpose of assessing additional rent. It was further argued that there was no evidence and no finding that in 1259 B.S. there was any nal of 14 cubits in use in the zemindari and that in the absence of any such evidence or finding the words 'khud khast nal' must refer to the nal of 16 cubits which was used for measurement at the inception of the tenancy. On behalf of the landlord. It was said that the appeals were concluded by the finding of fact to which, I have already referred, and we were referred to the cases of Nafar Chandra Pal Chowdhury v. Shukur Sheikh 51 Ind. Cas. 760 : 46 C. 189 : 23 C.W.N. 345 : 9 L.W. 552 : 45 I.A. 183 (P.C.) and Kristo Das Law v. Abdul Karim 62 Ind. Cas. 474 : 25 C.W.N. 328 : 34 C.L.J. 35 as to the disability of this Court, in second appeal, in interfering with this finding. The applicability of these cases depends on whether the matter before us is merely a question of construction of the dowls upon the documents themselves or whether evidence was necessary and, therefore, admissible to determine the meaning to be attributed to the words 'khod khasta nal' in the dowls. The cases above referred to did not depend upon the construction of any document.
16. We were further referred to Chatenay v. Brozilian Submarine Telegraph Co. (1891) 1 Q.B. at 79 p. 85 : 60 L.J. Q.B. 295 : 63 L.T. 739 : 39 W.R. 65 as authority of the proposition that the meaning of words is a question of fact. But here again it has first to be determined whether extrinsic evidence is necessary and, therefore, admissible to determine the meaning of the words 'khod khasta nal' in the dowls. If such evidence is admissible then doubtless we are bound by the finding of fact of the Special Judge.
17. It was further urged that as there were no appeals against the additional rent allowed to the landlord the appeals were futile unless there was a remand but I do not think there is anything in the point as the basis of calculation was assailed and if this falls the calculations based thereon must necessarily fall.
18. The rest of the argument addressed to us on behalf of the landlord rested on the meaning to be applied to the words 'khod khast nal' and was based on extrinsic evidence. It seems to us unnecessary to deal with this as, if extrinsic evidence is admissible, the landlord is entitled to rely on the finding of the Special Judge in his favour as to the meaning of the words 'khodkasht nal'. It is now necessary to return to the dowls themselves. I cannot find that anywhere in the earlier part of the dowls, the words 'khod khaata' or 'khod khast' are used in connection with the words nal. All that is stated is that the land to be demised which had formerly been (as appears from the documents) let out as a patni taluk was then in the zemindar's possession and was 'mehal khas khod khasta' that is vacant land in self-cultivation and that when this land was measured between 1249 and 1256 (presumably for the purpose of creating the former patni taluk which had come to an end) a pole of 16 cubits was used. I think all that can be gathered from this is that a pole of these dimensions was used presumably when the former patni taluk was created.
19. The document then proceeds that what had formerly been held as the patni taluk of Sitaram Sen but now was in self-cultivation had (presumably for the purpose of creating a new patni taluk) been again measured with a pole of 16 cubits. I do not think that from these words it can be inferred that the 16 cubits pole is the khod khast pole or nal. I only infer from the words that the 16 cubits pole was the pole used when a patni taluk was created and I can infer-nothing else. The result is that you have, I think, nothing in the dowls themselves to guide you as to the meaning of the expression 'khod khasta nal' and. I think, therefore, that evidence was admissible to show what the expression 'khod khasta nal' meant in this zemindari. The Special Judge had found upon the, evidence that it meant a pole of 14 cubits and I think that this is a finding of fact which is binding on us in second appeal.
20. There is this additional argument I think in favour of his decision, namely, that the word, khodkhast as applied to nol must, having regard to the position of the words, have the same meaning as it has when used in connection with the word rate and I find it difficult to attribute to the words 'khod khasta rate of the Pergana' the meaning we are asked to put upon them, namely that this is the rate which appears in the; the dowls as the rate charged for khod khasta land. In the result we dismiss v these appeals and with costs, hearing fee Rs. 16 in each case to the appearing respondents.
In No. 2604 of 1921.
21. This is an appeal by the tenant. The landlord sued under Section 105 of the Bengal Tenancy Act claiming from the holder of a taluk additional rent in. respect of excess area found on measurement and asking for the settlement of fair and equitable rent. The claim was allowed and the rent fixed by the Assistant Settlement Officer; the tenant appealed against the assessment to the Special Judge-on the ground that lands of another taluk (No. 2042) had been wrongly included in his taluk in arriving at the excess area and in assessing rent. The Special Judge found against the tenant's contention holding that-there was nothing to show that lands of another taluk had been included. The Record of Rights was in the landlord's favour and the presumption raised by the entry therein has not been displaced.
22. It is said, however, on the tenants behalf that both Courts wrongly refused to direct production of certain chittas and khatians and to direct that the chittas should be relied by local investigation, and that an application requiring the plaintiff to file the dowl of taluk No. 2042 was wrongly refused. The Special Judge finds as. to the first application that it was made to the Assistant Settlement Officer on the day of the trial and that it was not pressed and as to the second application that it was made after the evidence was closed and that it was rightly rejected and that the objection was frivolous and that there was no reason to disbelieve the dowl filed by the landlord. The appeal is concluded by the findings of fact of the Special Judge and we think that the two applications to which I have referred were rightly rejected.
23. The appeal is dismissed with costs one gold mohur to the appearing respondents.
24. In No. 2266 of 1921.
24. This is an appeal by a tenant and the first point raised in the appeal is the same as that raised in Appeal No. 419 of 1922 and in the other appeals heard along with that appeal. The other point raised is that the Court below has allowed the landlord additional rent without assigning any reason for so doing. The number of this case in the First Court was 15532 and the First Court has found as regards the first point that excess land is to be measured by nal of a 14 cubits which, it finds, is the measurement of the khod khasla nal. The Dowl in this case recognised a distinction between the khod-khast rate and the taluki rate; so clearly in this case, having regard to the finding of fact of the First Court which was not displaced in appeal, (and indeed I 'am not sure that there was any appeal on this point by the tenant to the lower Appellate Court as the appeal, to that Court was by the landlord against the additional rent allowed) and also having regard to the construction of the dowl itself, the standard of measurement was rightly fixed at 14 cubits. As to the second point, the First Court allowed as the fair rent for the excess land Rs. 24-14-5 which was considerably less than might have been allowed, had the whole of excess, which calculated:, at the rate prevalent in the Pergana amounted to Rs. 49-15-0, been allowed. The lower Appellate Court allowed an additional rent of Rs. 5-14 but even this is less than what might have been allowed by some, i.e., Rs. 19; so it is not apparent what grievance the tenant has except that no reason was given by the lower Appellate Court for allowing the increase of Rs. 5-14-0 but that Court has fixed what it considered the fair rent and as the total rent fixed as the fair rent does not exceed 50 per cent., of the gross assets we do not see that the tenant has any real complaint. The appeal fails on both points and is dismissed with costs one gold mohur to the appearing respondents.
(Cross-Objections In Appeals Nos. 419 and 420 and 450 of 1922, and Appeals Nos. 1180 of 1922, 1209 and 1210 of 1922, 450 and 451 of 1922, and 463 of 1922, 1811-1814 OF 1922 and 1874 OF 1922.)
Greaves and Graham, JJ.
25. These three cross-objections and the appeals are by the landlord who applied under the provisions of Section 105 of the Bengal Tenancy' Act for the settlement of fair and equitable rent in respect of the excess lands found on the measurement of certain putni taluks held by the defendants. The question which arises in the cross-objections and appeals is as to how the amount of rent in respect of these excess lands is to be calculated. The Courts below in fixing-the rents have not given the full amount of rent which would result from calculating what the rent would he if the whole of the excess area found on re-measurement was assessed for rent at the rate mentioned in the dowl kabuliat but have fixed what they considered a fair and equitable rent in the circumstances. The landlord contends that he is entitled to have the rent assessed in accordance with the contract contained in the dowl kabuliyats, although I understand him to be willing that where the rent for excess land added to the original jama exceeds 50 per cent, of the gross assets, the total rent plus the amount to be allowed for excess area should not exceed 50 per cent of the gross assets.
26. The covenant by the tenant in the various dowl kabuliyats is to all intents and purposes the same, namely, that where increase of area is found upon fresh measurement, he will pay rent for the same according, to the measurement and rate mentioned in the dowl. It is not, I think, necessary to refer to the details in all the appeals for we only have to decide the principle which is to be followed in making the calculation of the rent payable by the tenant for the excess area found on measurement, but it will be convenient to make two references to illustrate the point.
27. In No. 419 of 1922 the Assistant Settlement Officer, basing his measurement on a pole of 16 cubits, found the excess to be 1 drone 2 kanis 2 la-ants and calculating this at the kabuliyat rate allowed the full amount of Rs. 51-1-9 but the Special Judge, basing his measurement on a pole of 14 cubits, found the excess to be 1 drone 7 kanis 9 gds. 3 karas 2 krants which calculated at the kabuliyat rate would make the. rent payable for the excess land Rs. 66-11-0 but instead of allowing this amount the Judge has allowed only Rs. 58 although this added to the existing rent of Rs. 133-8-3 makes the total jama less than 50 per cent, of the gross assests which amount to Rs. 419-7-9.
28. Again in No 1180 of 1922 although, according to the calculation of the Assistant Settlement. Officer, the rent for excess area calculated at the kabuliyat rate amounts to Rs. 52-3-6, only Rs. 8-6-0 has been allowed and the Special Judge, although the. rent for excess area on his calculation should be Rs. 68-1-6, has only allowed Rs. 14 although this added to the existing rent makes the total jama less than 50 per cent, of the gross assets which amount to Rs. 336-12-4.
29. In Appeal No. 451 of 1922 another point arises, it being urged on behalf of the landlord that there has been too large a deduction made for nalayek or waste land and the same point is made as has been referred to above that rent should have been allowed for the whole excess area found by measurement at the kabuliyat rate which would amount to Rs. 133-11-0 whereas the Assistant Settlement Officer has allowed Rs. 93-7-0 and the Special Judge Rs. 103. It is noticeable in this case that if a larger allowance had been made the total jama would have exceeded 50 per cent, of the gross assets.
30. A further objection is raised to the admission of Ex. A, a chitta khatian which it is said was put in after the case was closed with the result that the plaintiff could, not adduce rebutting evidence. It appears that the amount of waste land was questioned in the written statement and that the landlord, therefore, had notice of the contention supported by Ex. A and we think, therefore, that the landlord should have called evidence on the point and that Ex. A was rightly admitted, this being so there is nothing in the point raised as to area of the waste land allowed being excessive.
31. The main contentions Praised in these appeals on behalf of the tenants were (1) that no appeal lay as the decisions of the Courts below merely settled the rent and (2) that in any case in proceedings under Section 105 of the Bengal Tenancy Act the Assistant Settlement Officer and the Special Judge were not bound by any contract between the parties but could fix a rent which they thought fair and equitable. So far as the first point is concerned we think that an appeal lies as the question to be decided involves not merely deciding what. rent is payable but deciding the question of the principle to be followed in arriving at the rent payable: It is true that the point involved does not fall expressly within any of the issues set out in Section 105A of the Bengal Tenancy Act and the cases seem to show that where these questions arise an appeal lies to the Court, but we think that if the decision of the Special Judge does not merely settle a rent but involves as here some question of principle as to the basis, upon which rent is to be settled, the decision of the Special Judge is appealable to this Court.
32. As regards the second question it has been held that the provisions of Section 105 of the Bengal Tenancy Act are applicable not only where no rent has been fixed but also where the rent has been fixed by agreement of parties, Aktowli v. Tarak Nath Ghose 17 Ind. Cas. 266 : 16 C.L.J. 328 : 17 C.W.N. 774, Jogendra Mohan Das v. Janki Nath Saha 36 Ind. Cas. 795 : 27 C.W.N. 427. Consequently it seems to us that where, as here, the landlord has invoked the provisions of Section 105 he cannot contend that the Judge is necessarily bound, in fixing the rent, to adhere to the rate mentioned in, the kabuliyat. No doubt the Judge would take this into account but we think that if he finds that a strict adherence to the rate mentioned in the kabuliyat would make the rent in excess of what he considers a fair and equitable rent he is bound by the terms of Section 105 to so adjust the rent irrespective of any contract between the parties, as to make it just and equitable. The case of Malungini Dassi v. Ram Das Mullick 7 C.W.N. 93 which is said to support the contrary view was not a suit under Section 105 of the Bengal Tenancy Act. We think, therefore, that it was open to the Special Judge to adopt the course which he did and that he was not bound to allow enhancement at the full rate provided in the contract. This disposes of the cross-objections which are to be dismissed with costs to be paid to the appellants and of the appeals which are dismissed with costs, hearing-fee Rs. 16 in each case to the appearing respondents.
(In S.A. Nos. 1855 of 1921, 2236, 2372 of 1921, 412 419, 420 of 1922, S.A. Nos. 2266 OF 1921, S.A. Nos. 329 and 330 of 1922, S.A. Nos. 2427 of 1921, 2428, 2604 and 2605 of 1921, 1801, 1802 of 1922, S.A. Nos. 395 of 1922, S.A. Nos. 956 and 957 of 1922, S.A. Nos. 1062 and 1063, 1476 and 1477, 1893 and 1894 of 1922.)
Appeals by tenants defendants.
33. The main point involved in these is appeals the construction to be placed upon certain dowl kabuliyats and the question is what the parties thereto intended when they provided that excess lands found subsequently in possession of the tenants should be paid for 'according to the khod khasta nal and rate of the Pergana'.
34. Exhibit 26 which has been referred to as an example of those dowls concludes with the following passage. 'If on fresh measurement excess land be found, I shall pay separate rent for the same according 'to the khod khasta nal and rate to the Pergana'.
35. The controversy centres round the meaning of these words. For the tenants-appellants it has been argued that they mean the nal of 16 cubits which was used for measurement at the time when the tenures were created while on behalf of the landlords respondents it was urged that the words indicate a standard of measurement different from that referred to in the earlier part of the dowls and that what they meant was the raiyatinal of 14 cubits It is unfortunate that these documents should have been drawn up in such a way as to leave the matter in doubt and the fact that different Courts have decided differently as regards the meaning of the words in question in similar dotal kabuliyats shows that the matter is not free from difficulty. There is much to be said for both points of view. In favour of the tenants contention the following arguments may be advanced.
1. The prima facie probability that the same nal and rate, which were used at the creation of the tenures, would be used fof the purpose of ascertaining and assessing excess area.
2. The improbability on the other hand that the parties could have contemplated the use of a different nal fox measuring excess area, the effect of which would be to introduce complications, as held in the judgment of this Court in 1887 when the same question arose in connection with similar dowl kabuliyats. If the landlord's contention is accepted, it will involve first a measurement according to the taluki standard of measurement to ascertain whether the land held by the defendants. is in excess of the area covered by their leases, and then in respect of excess land so ascertained, a settlement of rent after ascertaining the excess area by a re-measurement upon entirely different principles It is arguable that the parties could not have contemplated such a complicated mode of procedure.
3. The length of the taluki nal has been twice mentioned in the dowl as 16 cubits, and if the intention had been that excess lands should be measured with a different nal of 14 cubits, it might have been expected that this would be clearlu stated.
36. On the other hand, there is a great deal of force in the view taken by the learned Special Judge that if the intention had been, that the same nal should be employed nothing would have been easier than to say that the nal to be used for excess land would be as aforementioned, the word 'atra' or some similar word being employed for this purpose.
37. For the sake of judicial consistency it might be urged that we ought to adopt the same view that was held by this Court in 1887. But, as my learned brother has pointed 'out, the decision on that occasion was based mainly on the finding arrived at in the Court of first appeal that the khod khasht, or raiyati nal came into existence under special circumstances at a period years later than the agreements entered into. The position is different here, as we have no such evidence before us.
38. On the whole, therefore, on a consideration of all the facts and circumstances, I see no reason for holding that the conclusion arrived at by the Special Judge is erroneous and I agree that these appeals should be dismissed.