Harington and Pratt, JJ.
1. This is an appeal brought by the tenant-defendants against the judgment in a proceeding which was taken by the zemindars under Section 105 of the Bengal Tenancy Act for the purpose of settling a fair and equitable rent of the lands held by the defendant.
2. It has been stated that the plaintiff purchased the mahal, in which the lands lie, on the 5th July 1897, at a sale held for years of revenue. Finding a difficulty in getting rents, he applied under Section 163A of the Bengal Tenancy Act for a cadastral survey, and accordingly a record-of-rights was made and published in September 1903. After that, the record containing a statement that the rents had not been fixed, he took proceedings under Section 105 of the Bengal Tenancy Act for the purpose of getting the rents payable for the lands fixed. A preliminary objection has been taken by the respondent to the hearing of this appeal. The respondent says that no appeal lies, because under Section 109A(3) of the Bengal Tenancy it is provided: 'Subject to the provisions of Chapter XLII of the Code of Civil Procedure, an appeal shall lie to the High Court from the decision of a Special Judge in any case under this section (not being a decision settling a rent) as if he were a Court subordinate to the High Court within the meaning of the first section of that Chapter.' The respondent contends that this was a decision settling a rent under Section 105 of the Bengal Tenancy Act, and that, therefore, the appeal is barred by the provision of the section, which we have just read.
3. The learned Counsel, who has appeared for the appellant, contends that there is an appeal, because he says Section 105(1) is only applicable to cases where a proper record-of-rights has been made, but that in this case no proper record-of-rights has been made, because the Settlement Officer, whose duty it was to insert the rent with record payable by the tenant has not inserted the rent, but has inserted a statement that the rents have not been fixed. It is contended that the effect of Sub-section 4 of Section 105 is to limit the operation of that section in cases where existing rent is found to be fair and equitable.
4. Clause 1 of Section 105 provides: 'When in any case in which a settlement of land revenue is not being made or is not about to be made either the landlord or the tenant applies within two months from the date of the certificate of the final publication of the record-of-rights under Section 103A, Sub-section 2 for a settlement of rent, the Revenue Officer shall settle a fair and equitable rent in respect of the land held by the tenant.' Clause 4 of the section says: 'In settling rents under this section, the Revenue Officer shall presume, until the contrary is proved, that the existing rent is fair and equitable, and shall have regard to the rules laid down in this Act for the guidance of the Civil Court in increasing or reducing rents, as the case may be.'
5. Now, that clause seems to us to be intended as a guide for the Revenue Officer in settling a fair and equitable rent. The power to settle a fair 'and equitable rent is conferred in the most express terms by Section 105(1), which we have just read, and we think that that power cannot be limited, except by express words of limitation. The insertion in the section of a clause that the Settlement Officer is to make a presumption under certain circumstances cannot, in our opinion, be held to have the indirect result of cutting down the express power given him by Clause 1 of the section.
6. Further in Clause 2 it is provided: 'When in any case in which a settlement of land revenue is not being made, or is not about to be made, the Revenue Officer has recorded, in pursuance of Clause (i) of Section 102, that the occupant of any land claimed to be held rent free is not entitled to hold it, without payment of rent, and either the landlord or the occupant applies within two months from the date of the certificate of the final publication of the record-of-rights under Section 103A, Sub-section 2, for a settlement of rent, the Revenue Officer shall settle a fair and equitable rent for the land.'
7. That indicates that the Revenue Officer may be called upon to exercise his power of settling a fair rent for the land, where no existing rent is found to be payable.
8. For these reasons, the objection urged by the learned Counsel for the appellant to the proceeding under Section 105 fails, and it is perfectly open to the landlord to come under Section 105 so long as he is limited by that section, and get reasonable rents settled for the lands.
9. It was argued further, 'on behalf of the appellant, that this is a proceeding under Section 10G, and, therefore, an appeal lies.
10. The answer to that is, first, that the petition put in by the plaintiff was a petition headed under Section 105, and, secondly, Section 106 relates to cases in which the party applying objects to some entry in or omission from the record, and does not apply to cases in which the party applying founded his application on the allegation that the record made is accurate. Here the plaintiff says: 'In the record made, the rent is not actually settled: I must go under Section 105.'
11. Taking that view as to the accuracy of the entries made by the Revenue Officer, we do not think that Section 106 applies. To come under that section one must dispute the accuracy of the entries in the record-of-rights.
12. The result is, therefore, that in our opinion the case falls under the express provisions of Section 105, and the appeal in this Court is barred under Clause (3) of Section 109A. No second appeal lies.
13. Then it is argued that we ought to interfere with the judgment of the lower Appellate Court under Section 622 of the Civil Procedure Code That argument is based on the allegation that the record-of-rights was one which could not be properly described as a record-of-right, because it does not fulfil the provisions of law, and that, therefore, there was no jurisdiction under Section 105 for varying the record, which was not a legal record.
14. There is no reason why we should interfere with the judgment under Section 622 of the Code of Civil Procedure.
15. The result is that the appeal must be dismissed with costs.
16. The order governs appeals Nos. 3120 of 1904, 127 to 129 of 1905 and 159 to 167 of 1905.
17. Separate applications made under Section 622 are also dismissed.
18. The decree will be drawn having regard to the amount of rent settled in each case.