NAFAR CHANDRA PAL CHOUDHURY Vs. BHIKU SHEIKH

JUDGEMENT

(1.) S.A. No. 1551 of 1928. This appeal has arisen out of a proceeding under Section 180-A, Ben. Ten. Act, started by the tenants for the fixing of uniform annual money rent in respect of utbandi lands: the proceed-];;;. so started related to a number of tenancies described with reference to khatians as specified in the finally published Record-of-Rights prepared under Chap. 10 , Ben. Ten. Act, and as the Assistant Settlement Officer before whom the application under Section 180-A was made puts it, in his judgment, the tenants wanted to have their utbandi lands converted into jamai at uniform annual money rents. The claim of the tenants was opposed by the landlord, on various grounds. It may be mentioned that the condition and incidents of the tenancies as mentioned in the settlement records are that every year rent is realised for land under cultivation excluding the patit (fallow) land. It appears from the judgment of the Assistant Settlement Officer in this case that the landlord realized rent at the current utbandi rates for the lands under cultivation, "no rent was realised for lands or portion thereof when left fallow. " It appears further that the lands are left patit (fallow) for three years after three years cultivation, and are similarly tilled by rotation.

(2.) On the above state of facts, the Assistant Settlement Officer settled uniform annual rent payable in respect of the tenancies on this basis that the rent realized by the landlord in respect of a portion of the tenancy under cultivation at a particular period was to be taken to be the rent of the entire holding, negativing the landlord's claim to have rent determined in respect of the entire area of the tenancies in question, at the current utbandi rates. On appeal by the landlord and on cross-objections preferred by the tenants, against the decision of the Assistant Settlement Officer, the Special Judge of Nadia, in a judgment delivered more than 18 months after the case was heard by him affirmed the view taken by the Assistant Settlement Officer. As against this decision arrived at by the learned Special Judge on appeal, the landlord has appealed to this Court.

(3.) A preliminary objection as to the competency of the appeal was raised in view of the provisions contained in Section 180-A (15), read with Section 115-C, Ben. Ten. Act. Reliance was placed by the learned advocate for the respondents on certain decisions of this Court in which it was held that no second appeal was permissible when the decision was one settling a rent; it was further urged that Section 180-A (15) contemplated one appeal only. There is no substance in either of the contentions urged, after the decision of the Full Bench in Jnanada Sundari V/s. Abdur Rahman [1916] 43 Cal. 603 the position is well settled that where the decision involved a fundamental question in connexion with a tenancy, the extent of area with reference to which rent was to he assessed, as in the present case, the; decision could not by any stretch of language, be said to be a decision merely settling rent, against which there was no second appeal, provided by law: see Midnapur Zamindari Co. Ltd. V/s. Sridhar Mahata A.I.R. 1922 Cal. 152. In the present appeal, it may further be mentioned, the question of the rate of rent settled and which has been considered to be the fair rent per bigha or acre by the Assistant Settlement Officer, has not been and could not be questioned on the facts and in the circumstances of the case. As to the other contention that Section 180-A (15) contemplates one appeal only, the proposition does not bear serious examination Section 180-A (15) refers to and must be read with Section 115-C, which provides for a second appeal. A second appeal as presented is therefore competent, and the preliminary objections as to its maintainability must be overruled.