W. Comer Patheram, C.J.
1. My answer to the question referred to the Full Bench is 'that a Revenue Officer in preparing a record-of-rights under Sections 101 and 102 of the Bengal Tenancy Act is not competent to determine the validity of rent-free titles set up by persons occupying lands within the area under inquiry, so as to resume such lands and to declare them liable to settlement of rent.'
2. Section 101 is the section which creates the power, and the power created is to order a survey to be made and a record-of-rights to be prepared, that is to say, to prepare a record of such rights as the officer finds in existence. The words cannot in my opinion bear the meaning that they give the officer the power to create fresh rights, and to record them when he has created them.
3. The question assumes that the land occupied within the area under inquiry is land which has not been held by the occupier as a tenant within the definition in Section 3 of the Act, that is, that the occupier is a person who has occupied the land without paying rent, and not under a special contract with the landlord, which absolves him from the payment of rent, and further assumes that before any rent could be recovered from him the land must be resumed by the landlord and a rent settled upon it by some competent authority. I do not think that an officer whose powers are limited to recording existing rights can have such a power, and for this reason I answer the question in the manner which I have already mentioned.
4. I have carefully considered the case of Gokhul Sahu v. Jodu Nundun Roy I.L.R. 17 Cal. 721, and see no reason to doubt the correctness of that decision.
5. The result is that the appeals will be dismissed save as to the order in No. 538, that the land should be recorded as lakhiraj, and in Nos. 539 and 540, that the respondents should be recorded as maliks, which was wrong. The appellant must pay the costs in these three appeals.
6. The Local Government, by a notification under Section 101 of the Bengal Tenancy Act, directed a survey to be made and a record-of-rights to be prepared in respect of all lands included within the boundaries of the Government estate Kamina Chuk, bearing towji No. 802 in the district of Midnapur. (Calcutta Gazette, 19th January 1887, part I, page 99.)
7. This notification was apparently not brought to the notice of the Division Bench which has referred these second appeals to a Full Bench, but it has been cited to us in the hearing of this reference.
8. This estate Kamina Chuk, No. 802 on the towji, was, we have been informed, bought by Government in 1868, but not at a sale for arrears of revenue.
9. The terms of the notification do not set out the grounds on which these proceedings wore instituted by express reference to any particular clause of Section 101. We may, however, take it that action was taken under Section 101 (2) (e), the local area being comprised in an estate which belongs to Govern-ment. No settlement of revenue could have been contemplated, because the local area was that of a permanently-settled estate.
10. The Revenue Officer accordingly, under the Survey Act of 1875, proceeded to measure the lands and called upon those holding lands within that estate to point out the boundaries of their holdings, and also, it would seem, to state their titles thereto. No notice is on the record, but we gather that these were the terms of the notices issued from the petitions of objection presented by the respondents in the appeals now before us.
11. The respondents claimed to have held their lands rent-free or revenue- free for very many years, the exact term being doubtful, but ranging from 40 years to the time of the permanent settlement, and they stated that they have never paid rent at any time. Moreover, there is nothing on the record to show, nor has the Revenue Officer found, that at any time since the permanent settlement rent has been received for any of these lands. And it is not alleged that any of the respondents or their predecessors in title were put into the possession by any of the zemindars, the proprietors of the estate. The Revenue Officer nevertheless called upon the respondents to prove the titles set up, and having, except in one instance, found them to be bad, he has declared the lands to be liable to assessment of rent.
12. The Special Judge on appeal set aside these findings, holding that they were without jurisdiction. He has further held that the burden of proof was on Government, and that it has not been discharged.
13. The Division Bench, before which these second appeals by Government against the order of the Special Judge came, was unable to agree with the view of the law expressed in Gokhul Sahu v. Jodu Nundun Roy I.L.R. 17 Cal. 721, and the Judges consequently referred these appeals to a Full Bench to consider 'whether, in preparing a record-of-rights under Section 102 of the Bengal Tenancy Act, a Revenue Officer is competent to determine the validity of rent-free titles set up by persons occupying lands within the area under inquiry, so as to resume such lands and to declare them liable to settlement of rent. Should this be answered in the affirmative, it will then become necessary to determine whether the burden of proof has been properly put on the respondents.'
14. In order to prepare a record-of-rights of the estate Kamina Chuk, it was the duty of the Revenue Officer to record--
1. The name of each tenant.
2. The class to which he belongs.
3. The situation, quantity and boundaries of the lands held by him.
4. The name of the landlord.
5. The rent payable.
6. The mode by which that rent has been fixed, whether by contract, by order of a Court, or otherwise.
7. The special conditions and incidents, if any, of the tenancy.
15. Consequently the first step was to determine whether the respondents or any of them were tenants within the definition given in Section 3 (3), that is to say, whether they were any of them liable to pay rent for any of the lands held by them.
16. The burden of proof was on the landlord, the Government, to prove that these persons were liable to pay rent. It may be that the lands held by the respondents form portion of the estate Kamina Chuk, but even then it would not necessarily follow that the respondents are liable to pay rent for them to the Government, the present proprietor of the estate. In these cases the respondents have denied that they were any of them put into possession by any of the proprietors of the estate; they have also denied that they have at any time paid rent for any of these lands; they claim to have held these lands under various titles, rent-free; and, admittedly, they have all so held these lands for very many years. Prima facie the respondents are not liable to pay rent, and it seems equally clear that they cannot be held to be liable to pay rent unless and until they have been declared to be so liable by a regularly constituted Court.
17. It is the duty of a Revenue Officer in preparing a record-of-rights under the Bengal Tenancy Act ordinarily to record only the existing state of things. Unless he is specially empowered, he cannot disturb the existing relations between landlord and tenant or between the proprietor of an estate and a person occupying land under a title adverse to him. Such matters are within the jurisdiction of the Civil Courts, and are cognizable only by such Courts unless the law has otherwise specially provided. The law does not give a Revenue Officer such jurisdiction. The respondents are not necessarily the tenants of the Government as proprietor of Kamina Chuk, merely because (and even this has not been found they may occupy lands within that estate. The Revenue Officer is not competent to determine (1) whether they ought to be tenants, (2) whether they ought to be made liable to pay rent, and (3) lastly to assess that rent.
18. The Revenue Officer has assumed to himself all these functions without the authority of law.
19. Our attention has been directed to Section 104 (2), and it has been contended that if the lands were mal lands within the revenue paying estate Kamina Chuk, the Revenue Officer was competent to investigate the titles set up by the respondents, and on holding that those titles were not established he was competent to settle or assess rents.
20. The passage of Section 104 (2) which is quoted as applicable to these cases, is that, when either the landlord or tenant applies for a settlement of rent, the Revenue Officer shall settle a fair and equitable rent in respect of the land held by the tenant. Read with the context, this applies only to lands for which rent has been already settled between the parties, a modification or settlement of which rent in the future is desired by one of them. The section proceeds thus--'in settling rents under this section the officer shall presume, until the contrary is proved, that the existing rent is fair and equitable.' In the cases before us there is no existing rent, so that this section cannot apply. The whole of Section 104 deals with persons who as tenants are 'paying rent to the landlord, and it empowers a Revenue Officer, in making a record of rights, to enhance or abate those rents either in consequence of the excess or deficiency of the holding occupied, or because the rent paid is not fair and equitable, or to settle the rent when a settlement of revenue is being made, so as to determine the revenue payable. But none of these cases is applicable to the present appeals.
21. Consequently the Revenue Officer was not competent to act as a Resumption Officer and to determine whether the lakhiraj titles set up were or were not valid titles. No such power has been expressly given to him by law. On the contrary, there are special laws directing how and by whom such matters should be inquired into and determined. We may also observe that, under the law for the North-Western Provinces, this power has been specially given to Revenue Officers in the preparation of a record of rights; but the legislature has also simultaneously repealed the Resumption Regulations. In Bengal those regulations are still in force, and such powers have not been so conferred.
22. At the hearing of these cases we were inclined to express dissatisfaction with the Revenue Officer who has conducted these proceedings and who seemed to have been responsible for the procedure adopted, which was altogether opposed to that recognized by Courts of Law and by the Legislature. But while our judgment was still under consideration, our attention was drawn to certain rules forming part of Survey and Settlement Manuals, issued apparently under the authority of the Board of Revenue as directions to their Subordinate Officers when proceeding under the Special Revenue Acts relating to surveys and settlements. It was observed, however, that under this appearance of authority some of the rules were expressly directed to judicial proceedings under Chapter X of the Bengal Tenancy Act, and had been issued as instructions to Revenue Officers holding such proceedings. It did not appear that these rules had received the force of law in the manner prescribed by Sections 189 and 190 of the Bengal Tenancy Act, or that they were otherwise in any way binding upon Revenue Officers in such proceedings. The learned Government Pleader who had. appeared in these cases was accordingly given an opportunity of being heard as to the validity of these rules. The learned Government Pleader has placed before us a letter from the Under-Secretary of the Government of Bengal to the Superintendent and Remembrancer of Legal Affairs, dated 17th June last, to the effect that the rules in the Settlement Manual were passed under the authority of Government by the Board of Revenue. It may be taken that the same course was followed in the passing of similar rules in the Survey Manual. The learned Government Pleader has also informed us that he does not wish to be heard further on this matter.
23. It therefore becomes my duty to consider on the materials before us how far these rules, so far as they relate to judicial proceedings taken under Chapter X of the Bengal Tenancy Act and have not been passed in the manner directed by Sections 189 and 190 of that Act, have any binding force as directions to Revenue Officers acting as judicial officers under that Chapter or Courts before which such matters may come on appeal.
24. I have no doubt that all rules in the Survey Manual and Settlement Manual relating to the duties of Revenue Officers making a survey and preparing a record of rights under the authority of Section 101 of the Bengal Tenancy Act so far as such officers act as judicial officers, and purporting to be instructions to those officers which have not been passed by Government in the manner prescribed by Sections 189 and 190 of that Act, are altogether without sanction of law and are in no way binding on such officers, and that it is our duty to declare this. They are without legal authority as rules purporting to be made by Government, because they have not been passed in the manner required by Sections 189 and 190 of the Bengal Tenancy Act. They are moreover not binding on Revenue Officers so acting under the Bengal Tenancy Act so far as the rules purport to be under the authority of the Board of Revenue, because that Board is not empowered to make such rules or to issue such rules for the instruction and guidance of Revenue Officers in such matters, such Revenue Officer acting under the Bengal Tenancy Act empowered by that Act to exercise certain judicial functions in the course of which they may pass orders subject to appeal to a Special Judge and ultimately to the High Court.
25. The Bengal Tenancy Act does not confer authority on the Board of Revenue in such matters, and therefore Revenue Officers, in the performance of duties under that Act, cannot be in any way subject to the control and authority of the Board of Revenue, or be required to observe rules passed by that Board. They are bound to observe the law and such rules as may be regularly passed by Government under Sections 189 and 190 of the Act, and also any orders passed judicially on appeal by the Special Judge or the High Court, and they are also bound to follow as precedents the orders passed by the Special Judge and High Court in cases of a similar character. Revenue Officers in such proceedings are subject to no other authority. Consequently in all matters of a judicial nature coming within Chapter X of the Bengal Tenancy, a Revenue Officer is subject to no orders from the Board of Revenue. They are subject to rules made by Government under that Act and to no other rules and to no departmental instructions in relation to matters regarded as judicial and open to appeal to a Special Judge. Amongst the rules published in these Manuals, the rules in Chapter V, Nos. 4, 9 (page 18), Nos. 20, 21 (page 20) of the Settlement Manual, and in Chapter II, Nos. 32, 33, 35 (pages 8, 9), and in Chapter IV, No. 1 (page 12), of the Survey Manual seem to be particularly open to objection in connection with the proceedings in the cases now before us. The want of authority of the rules to which I have referred relates of course to the functions of a judicial character performed by a Revenue Officer under the Bengal Tenancy Act. I feel bound to draw attention to the proceedings taken by the Revenue Officer under the mistaken idea that these rules were binding on him, and the grave injustice likely to result from the course taken by him.
26. We have in these cases a Revenue Officer of Government directed to prepare a record of rights amongst which is the preparation of a rent-roll of a permanently settled estate which more than 20 years before the proceedings taken had become the property of Government by purchase, that is to say, an officer acting under the instructions of the Chief Revenue authority in Bengal issued with the approval of the Government, itself the proprietor of the estate, investigating and determining the relations between persons whom the Government asserts to be their tenants and the occupier of lands who deny that they are the tenants of Government.
27. In execution of what he conceives to be his duty, the Revenue Officer has called upon the occupiers of lands within that estate to point out their lands and to show and establish their titles, and he has declared these titles to be invalid, although the lands have been held under those titles for terms much exceeding the ordinary term of limitation, and although no rents have ever been paid for these lands, nor have any of the respondents otherwise admitted the title of the zamindar.
28. So far as we can ascertain, no one has appeared before the Revenue Officer on behalf of Government to contest any of the objections raised by persons setting up titles adverse to Government, but instead of bearing in mind that in the determination of these objections, so far as he had any jurisdiction at all, he was acting as a judicial officer, the Revenue Officer has pressed the case of Government to the utmost as against the objecting parties. In one instance he has gone so far as to put aside the fact that in 1874, that is, thirteen years before the proceedings now before us were initiated, the Collector of Midnapur stopped proceedings in resumption directed against one of the titles now set up, and he has re-opened that inquiry and has finally found that this title was invalid. We cannot suppose that in this instance at least, the proceedings of the Revenue Officer can meet with the approval of the Government. But on the procedure adopted we find that the Revenue Officer has not in all material points acted on his own responsibility. He can point to these rules issued for his instruction and guidance by the Board of Revenue under the authority of Government as directing the course which he has taken, and as has been already stated, he has been misled, for these rules are altogether without any valid or legal authority.
29. It has long been laid down as a principle of stringent application that suits between the Government and the subject in relation to land revenue or rent must be decided by tribunals wholly uninterested in the result of their decisions. The proceedings of the Revenue Officer in this case were certainly in contravention of this principle, as are the rules under which he appears to have acted, and which, as has already been pointed out, have been made without authority The omission to pass rules regularly under Sections 189, 190 of the Bengal Tenancy Act, is no ordinary irregularity. The course taken deprives the rules of all publicity, which is justly regarded by the Legislature to be of supreme importance, since it deprives all parties interested in any of the matters dealt with by the rules of an opportunity which the law has expressly given them of objecting to any of them and of requiring that the grounds of their objections shall receive due consideration. I think it necessary to lay stress on this that the consequence of the issue of these informal rules and the reason for our interference may be fully understood.
30. The cases now before us afford an apt illustration of the mischief which must result from any other rule. The proceedings being taken relate to an estate purchased by Government, and therefore under the management of the Board of Revenue, and they have been directed to inquiries as to the validity of titles set up by certain persons to hold certain lands rent-free or revenue-free. Government is necessarily one of the parties and interested itself through its official agents, the Board of Revenue, in the result of these proceedings. It is obvious that the Revenue Officer who is appointed to direct such proceedings should not be a subordinate of one of the parties to those proceedings; what confidence could the other parties have in a Court so constituted? In the cases before us it seems that no one has represented the Government, the proprietor of the estate, before the Revenue Officer. If the person at whose instance or for whose benefit a survey and record-of-rights was being made was a party, he would have been represented by some agent at every stage of the proceedings, and this course should have been taken also by Government. The proceedings seem to show that it has fallen to the duty of the Revenue Officer to send for and obtain evidence for the Government in rebuttal of the claims made by the other parties, and so practically to conduct for Government the cases which in a judicial capacity he has ultimately to determine and decide.
31. The case of Gokhul Sahu v. Jodu Nundun Roy I.L.R. 17 Cal. 721 is not altogether analogous to the cases now before us; for in that case in which a Bench of this Court had to decide whether the matter raised was not res judicata, the Court, acting under Chapter X of the Bengal Tenancy Act, found that the occupiers of land belonging to the particular estate had been put into possession as tenants by a previous zemindar and had set up titles purporting to have been granted by him, which were found to be invalid. It is unnecessary for us therefore to express opinion on that case.
32. In answer to the question put to us, I would answer that in preparing a record-of-rights under Section 102 of the Bengal Tenancy Act a Revenue Officer is not competent to determine the validity of rent-free titles setup by persons occupying lands within the area under enquiry, so as to resume such lands and to declare them to be liable to settlement and assessment of rent unless it can be first proved by the proprietor of the estate that the relation of landlord and tenant exists between him or his predecessor or the occupier of the land or his predecessor.
33. I agree in the answer given on this reference for the reasons stated in the judgment just delivered by Mr. Justice Prinsep.
34. The circumstances out of which this reference has arisen are as follows:
On the 14th January 1887, the Lieutenant-Governor issued the following notification:
Under the powers conferred upon him by Section 101 of the Bengal Tenancy Act, VIII of 1885, the Lieutenant-Governor is pleased to order that a survey shall be made and a record-of-rights prepared in respect of all lands included within the boundaries of the Government Estate Kamina Chuk, bearing towji No. 802, in the district of Midnapur.
'The particulars to be recorded in the survey and record-of-rights shall be the following:
The name of each tenant.
'The class to which he belongs, that is to say, whether he is a tenure holder, ryot holding at fixed rates, occupancy ryot, non-occupancy ryot, or under-ryot, and if he is a tenure-holder, whether he is a permanent tenure-holder or not, and whether his rent is liable to enhancement during the continuance of his tenure.
' The situation, quantity and boundaries of the land held by him.
' The name of his landlord.
' The rent payable.
' The mode in which that rent has been fixed, whether by contract, by order of a Court, or otherwise.
' If the rent is a gradually increasing rent, the time at which, and the steps by which, it increases. The special conditions and incidents, if any, of the tenancy. P. Nolan, Offg. Secretary to the Government of Bengal.
35. This notification follows Section 101 of Act VIII of 1885, except that it does not state under which of the Clauses (a), (b), (c) or (d) the Local Government issued the notification. During the course of the argument, it was at one time suggested that the Local Government was empowered by Clause (d); but apparently, if any paragraph of that section applies, it is Clause (c), as the estate is a permanently settled estate purchased by Government at an auction sale for arrears of revenue.
36. It will be noticed that under this section and the notification, only the facts existing at the time of the inquiry should be recorded : The name of each tenant, the class to which he belongs; the situation, quantity and boundaries of the land held by him; the name of his landlord; the rent payable; the mode in which the rent has been fixed; if the rent is a gradually increasing rent, the time at which and the steps by which it increases; and the special conditions and incidents, if any, of the tenancy. These, and these only, are to be stated in the record-of-rights of the estate under the Rent Act, unless other provisions of the Act are invoked.
37. It is also worthy of attention that a Revenue Officer under Section 102 is not ordinarily a settlement officer determining the amount of Government revenue. In all disputes between landlord and tenant the Revenue Officer holds a judicial position. He is bound to decide between party and party, in the same manner as a Munsif or Subordinate Judge decides an ordinary civil suit.
38. In the 'Settlement Manual' issued by the Board in 1892, I find the following:
General principles applicable to record and determination of rents.
' The following rules are of general application, whether the settlement proceedings are under the Tenancy Act or Bengal Act VIII of 1879.
39. I do not purpose to go through these rules in detail, as a few extracts will suffice. Section 104 of the Act provides for cases in which it is asserted that the tenant holds more or less lands than that for which he pays rent, and a contest arises between the landlord and his tenant as to whether the rent should be increased or reduced. By paragraph (3) of that section the Revenue Officer is directed to presume that the existing rent is fair and equitable 'until the contrary is proved,' and in deciding he must have regard to the rules laid down in the Act for the guidance of the Civil Courts in similar cases. These rules are given in Section 52 of the Act, and are inconsistent with any idea other than that each case must be decided on its own merits. The Board's rule runs as follows:
The Settlement Officer should collect a large number of cases in which he can identify a field or holding now held with a field or holding formerly recorded, or can obtain the recorded area of a field or holding known to have been unchanged in shape and size or presumed to be so from its being near the homestead or in the centre of cultivation, and a similar list of fields or holdings situated at the edge of the village or near existing waste lands where it may be reasonable to suppose that former waste has been encroached upon. The total of two such lists will give him some reasonable ground for a conclusion whether there was a considerable or constant error in the old recorded areas, and if any allowances ought to be made for such error.
40. This direction is directly opposed to Sections 104 and 106 of the Rent Act. The Act does not acknowledge the right of the Revenue Officer to deal with questions of deterioration other than as the Act directs. It does not recognize averages of increase or of decrease of area nor any other average, but averages of prices.
41. Again in Chapter V of the same manual, which distinctly refers to the record-of-rights under the Tenancy Act, it is declared by rule 4 that Settlement Officers, whether proceeding under the Tenancy Act or under Act VIII of 1879, must determine the validity or otherwise, and record the incidents, of every tenure and under-tenure. And further on in Rule 9, it is ordered that the 'Settlement Officer, however, is bound to declare the tenure is invalid, if it be invalid in law, and to fix a legally fair rent for it, leaving it to the superior authorities to allow favourable terms to the occupant if they think fit. These rules are applicable to estates permanently settled and purchased by Government.
42. Under the Act the Revenue Officer is clearly in all contested matters only subject to the special Judge and the High Court and not to the Board of Revenue. If the Government of Bengal desired to pass such rules, which I think it could not, it would be bound to publish them before-hand in the Calcutta Gazette, and hear any objection raised against them. Here the Rent Act is modified by a departmental order issued by the authority of Government.
43. Under Rules 16 to 20 of the Rules made by the Government of Bengal, the Revenue Officer in charge of the record-of-rights is bound to issue a notification calling on the persons interested in the subject-matter of the inquiry to attend at the time and place specified in the notification to offer such objections as they may wish to take to the proceedings; and on the date specified on the notice or any adjourned day, to read out the entries which the Amin has entered in each khatian, and decide any dispute which may arise. A further provision is also made to prevent any injury to the parties concerned. A person may come in under Section 106 to dispute the correctness of any entry under Chapter X before the final publication of the record; and then under Rule No. 32 prescribed by the Local Government, the Revenue Officer is bound to serve notices on all persons who, in his opinion, are likely to be affected by the objection, and to call upon them to attend on any day he may fix for hearing the objections. If any person attends and contests the objection, the proceeding takes the form of a litigious case, in which the objector is the plaintiff. If no person attends and contests the objection, the record is to be either amended or the objector is to be called upon to support his case, as an ex parte suit under the Tenancy Act.
44. The respondents appeared and objected that they held certain lands rent-free for a very long time and were not tenants. No notice was issued upon the Government, who claimed to be the proprietor of the land, nor did any person on behalf of the Government appear to contest that they were lakhirajdars. It is clear then that the Revenue Officer was bound either to receive the objections to amend the khatian, or, if not, to try the suit as an ex parte suit under the Rent Act. Had he done so, he would have found that it was the duty of Government to begin, and not that of the lakhirajdar.
45. What he seems to have done was to have called on the objectors to produce evidence in favour of their objections, and to have himself sent for evidence on behalf of Government; and, being of opinion that, although they held the lands for many years, not; as tenants, but lakhirajdars, that yet they had no proper title to hold the lands as lakhiraj, he declared that the lands should be resumed and assessed with the proper rent.
46. This is not a matter within the Act or Notification, which creates and limits his jurisdiction. He has perfect power to decide any of the matters mentioned in Section 102; but no further, and these do not come within that section. For instance, he can decide, and is bound to decide if any dispute should arise, whether the disputed land falls within the local area or not; but if he finds it does not fall within it, he cannot determine to what village or estate it belongs. Again, in a case of contest he may and should determine who, if any, is the tenant and who is the landlord for any portion of land; but if he finds, as in the present case, that the person in possession is neither a landlord nor a tenant, his jurisdiction ceases.
47. I think, therefore, that the question sent to us by the learned Judges for an answer, namely, whether, in preparing a record-of-rights under Section 102 of the Bengal Tenancy Act, a Revenue Officer is competent to determine the validity of rent-free titles set up by persons occupying lands within the area under inquiry, so as to resume such lands and to declare them liable to settlement of rent, should be answered in the negative.
48. I agree in the answer which it is proposed to be given to the question referred to the Full Bench. In doing so, I have a few observations to make.
49. It seems that the Government in these cases occupies the position of an ordinary zemindar, they having acquired the estate Kamina Chuk by a private purchase, and not at a sale for arrears of Government revenue.
50. Proceedings in these cases were taken under Chapter X, Sections 101 and 102 of the Bengal Tenancy Act, for a record-of-rights and settlement of rents. They were taken in the Court of the Deputy Collector of Tamluk.
51. By a notification of the Government of Bengal published in the Calcutta Gazette for 1890 (Part I, page 121), all Deputy Collectors were authorized to discharge the functions of a Revenue Officer under Chapter X of the Bengal Tenancy Act, and were vested with the powers of a Settlement Officer under Rule I, Chapter VI of the rules framed by Government in that behalf under Section 189 of the Act.
52. I take it therefore that the officer before whom the proceedings were taken had authority to act as a Revenue Officer under the Bengal Tenancy Act, and to make a survey of the lands comprised within Kamina Chuk.
53. A survey was, as I understand, duly made, and in the course of the proceedings the respondents in these three cases claimed certain lands as lakhiraj. The question thereupon arose whether the lands in question were rent-paying or rent-free, how should they be recorded by the Revenue Officer, and whether rent should not be assessed upon them.
54. The sanads produced by the respondents were of dates anterior to the permanent settlement, and it seems to have been their contention that they had never paid rent for these lands.
55. It does not appear that any evidence was adduced on behalf of Government that these lands at the time of the permanent settlement were assessed to the public revenue, or that at anytime afterwards any rent was received either by Government or by their predecessor in title. The Revenue Officer, however, called upon the respondents to prove their rent-free titles, and being of opinion that the sanads (with one or two exceptions) produced by them were not genuine, rejected them, and directed that the lands should be assessed with rent as rent-paying lands in the estate.
56. On appeal the Special Judge has reversed the order of the Revenue Officer excepting as regards one or two parcels of land, being of opinion that he had no authority to assume the functions of Resumption Court, and determine the validity or otherwise of the rent-free titles set up.
57. The question we have to address ourselves to is, what is the function of a Revenue Officer in a matter like this, when any person occupying lands within a local area claims to hold them not as a tenant but as a lakhirajdar.
58. Now, referring to Section 102 of the Bengal Tenancy Act, we have the particulars, which may 'either without or in addition to other particulars' be specified in the record-of-rights, and they are:
(a) The name of each tenant.
(b) The class to which he belongs.
(c) The situation, quantity and boundaries of the land held by him.
(d) The name of his landlord.
(e) The rent payable.
(f) The mode in which the rent has been fixed.
(g) If the rent is progressive, the time at which it is to increase.
(h) Special conditions and incidents of the tenancy.
59. Now, as correctly observed in the case of Gokhul Sahu v. Jodu Nundun Roy I.L.R. 17 Cal. 721 these particulars 'are such as presuppose the existence of a tenancy' and I think there can be no reasonable doubt that the Revenue Officer in preparing the record of rights must determine whether the person who occupies any land within the ambit of the estate is a tenant or not with respect to that land If he claims to hold it as rent-free and not as a tenant, the Revenue Officer has to find whether the relation of landlord and tenant exists between the parties or not.
60. But how is that to be determined
61. I agree with Prinsep, J., in holding that a Revenue Officer, acting under the Bengal Tenancy Act is not competent to assume the functions of a Resumption Court. These functions can only be exercised by a Civil Court. A Revenue Officer must, however, determine whether the defendant is a tenant or not within the meaning of Section 3, Clause (3) of the Tenancy Act.
62. The onus is not primarily on the party who claims the land as lakhiraj, but it is upon the landlord to prove that the opposite party is a tenant [see in this connection Harihar Mukhopadhya v. Madhub Chandra 8 B.L.R. 566 : 14 Moo. I.A. 152]. The landlord may prove this by showing that at some time or other after the permanent settlement, the defendant, or his predecessor in title, either attorned to him or paid rent for the lands. If the relation of landlord and tenant is thus established, the law would presume that that relation has continued to exist unless it be that the defendant had, more than 12 years antecedent to the proceedings, set up, to the knowledge of the landlord, an adverse right to hold the land as lakhiraj, in which case the claim of the landlord to receive rent would be held to be barred by limitation. Of course, if rent has ever been paid, mere discontinuance would not necessarily amount to the setting up of an adverse title. But unless the claim is barred by limitation, the opposite party may rightly be regarded as a tenant, and he should in that case be recorded as tenant. If he is so recorded as a tenant, it would, on application of either the landlord or tenant, be open to the Revenue Officer to settle under Section 104 of the Act a fair and equitable rent in respect of the land held by him. In the oases before us, the landlord evidently failed to prove that the defendant or his predecessor in title was his tenant for the land in question, nor did the defendant claim to hold under any grant from the predecessor in title of Government subsequent to the permanent settlement [as it was in the case of Gokhul Sahu v. Jodu Nundun Roy I.L.R. 17 Cal. 721) so as to make him a 'tenant' within the meaning of Section 3, Clause (3) of the Bengal Tenancy Act. The Revenue Officer was not therefore justified in treating him as such, and in determining what is the proper rent he should pay.
63. The Revenue Officer in these cases, in assuming the functions of a Resump-tion Court, and in calling upon the defendant to prove the validity of the lakhiraj title set up by him, has, I presume, proceeded upon the authority of a rule promulgated by the Board of Revenue and printed in the Settlement Manual, page 20, and which is as follows:
20. When the record-of-rights is being made under the Tenancy Act, and any question arises regarding the validity of claims to hold land rent-free, the Settlement Officer must adjudicate on the question according to law as a civil suit.
64. This is said to have had the authority of the Local Government; but we do not find that it was passed in the manner required by Sections 189 and 190 of the Act.
65. Upon all these grounds I am of opinion that the question referred to the Full Bench must be answered in the negative.