BAHADUR Vs. RAGHUNANDAN CHOWDHURY

JUDGEMENT

(1.) The plaintiffs were entered in the record-of-rights under Chapter X of the B.T. Act, as tenure-holders without fixity of rent in respect of four tenancies. The final publication took place on the 29 October 1905 and the plaintiffs brought this suit in March 1906 for a declaration that the record was wrong and that they were raiyats with a fixed rent. The zemindar defendant admitted that the plaintiffs were occupancy raiyats but denied that they paid a fixed rent. The learned Munsif held that the suit being one for a declaration was one under the Specific Relief Act and not one under the Bengal Tenancy Act, so that the presumption under Section 50 of the B.T. Act, as regards fixity of rent did not apply and that on the merits no uniform payment of rent had been proved. The learned Subordinate Judge on appeal by the plaintiffs reversed the judgment of the learned Munsif and decreed the suit. It is contended in appeal before me: (1) that the suit itself is not maintainable and the plaintiffs ought to have sought their remedy in the settlement proceedings (2) that the suit is not one under the Bengal Tenancy Act and the presumption does not apply.

(2.) As regards the first point, reliance has been placed on the case of Jogendra Nath Rai V/s. Krishna Promoda Dasee 35 C. 1013 : 12 C.W.N. 1032 : 8 C.L.J. 322, in which it was held that no regular suit will lie for the alteration or correction of an entry in the record-of-rights. That case related to cases in which the Settlement Officer had held that certain lands claimed as rent free were mal, and that certain lands claimed as belonging to the plaintiff's zemindari belonged to the zemindari of the defendants, matters which could hardly be decided under the Act before the amendment of 1907. See the case of Mohunt Padmalay V/s. Lukmi Rani 12 C.W.N. 8. There is also a series of cases in the books in which the Court has entertained suits intended more or less for the correction and alteration of the record-of-rights.

(3.) See Shambhu Chandra Hazra V/s. Purna Chandra 35 C. 176 : 7 C.L.J. 103 : 12 C.W.N. 122. Ram Ghulam Singh V/s. Bishnu Pargash Narain Singh 11 C.W.N. 48, Troylokhya Nath Bose v. M.N. Macleod 28 C. 28, Toki Sahu V/s. Tosi Munda 3 Ind. Cas. 689 : 9 C.L.J. 83 : 13 C.W.N. 111, Luchmi Pershad V/s. Ekdeshwar 13 C.W.N. 181 : 4 Ind. Cas. 577. Sheonandan V/s. Bacha Raut 9 C.L.J. 284 : 4 Ind. Cas. 54.