KALI PROSANNA DAS Vs. BHAGABAN MALI

JUDGEMENT

(1.) This is a second appeal from the judgment of the learned Special Judge of Backergunge, in which he held that he had no jurisdiction as a Revenue Court to fix a fair rent in respect of lands held by defendants-respondents in the zemindari of the plaintiff-appellant, inasmuch as those tenants were trespassers and the zemindar s only remedy was by the institution of a suit under Section 157 of the Bengal Tenancy Act, in which suit he can either eject the trespassers or have a fair and equitable rent determined by the Court.

(2.) A preliminary objection was raised that there was no second appeal in a case under Section 105 where there was a decision settling rent. But its is obvious in this case there was no decision settling rent, that the Special Judge declined jurisdiction, and the only question before us is whether this appeal should be remanded to the lower Appellate Court to be decided on the merits or whether the learned Judge was right in declining jurisdiction.

(3.) Now, the appellant bases his appeal on two very clear grounds. The first is that on an application under Section 105 of the Bengal Tenancy Act as it stood before the amendment as regards Eastern Bengal in 1908, neither the Assistant Settlement Officer nor the Special Judge had jurisdiction to decide whether the persons who are entered in the Settlement Record as ryots are ryots or not. He was bound to take the Settlement Record as he found it and if he was asked by a person who showed that he was the zemindar of the property which the ryots were occupying, he was bound to settle their rent if asked to do so; and in this connection, the case of Pandab Dowari Das v. Ananda Kishun Chakravarti 14 C.W.N. 897 : 7 Ind. Cas. 102 : 12 C.L.J. 195 was cited.