AKBAR ALI MIAN Vs. MUSAMMAT HIRA BIBI

JUDGEMENT

(1.) These appeals arise out of proceeding s under Section 105 of the Bengal Tenancy Act and the only points that arise for decision are, firstly, whether an appeal lies and secondly, whether under the circumstances of this case, the landlords-respondents are entitled to additional rent under Section 52 of the Act.

(2.) The facts found appear to be as follows: The land was measured by the landlords in 13G1 but the measurement was very badly done with the somewhat unusual result that the area put down as in the occupation of each tenant was far below the real area of his holding. The rates of rent were the same then as now bat, as the area was understated, the rent also was understated. Now that the land has been properly measured, the landlords claim that they are entitled to rent at the same rates on what has been found to be the real area. This view has been accepted by the Special Judge, and the tenants appeal.

(3.) As to the preliminary objection that no appeal lies, I think that it is now sufficiently-well settled that a decision fixing the area for which the tenant mast pay; rent is not a decision settling a rent from which an appeal is barred by Section 109 A of the Act. This was clearly held in the case of* Mathura Mohun Lahiri v. Umasundari Debi 25 C. 34 under the Act before its amendment and this decision was followed after the amendment of the Act in Raj Kumar Pratap Sahay v. Ram Lal Singh 5 C.L.J. 538. The opposite view was taken in Rameswar Singh v. Bhooneswar Jha 4 C.L.J. 138, 33 C. 837, in which no reference was made to Mathura Mohan Lahiri v. Umasundari Debi 25 C. 34. But in the Full Bench of Pirthi Chand Lal Chowdhuri v. Shiekh Basarat Ali 3 Ind. Cas. 449, 13 C.W.N. 1149, 10 C.L.J. 343, 37 C. 30, both that case and Raj Kumar Pratap Sahay v. Ram Lal Singh 5 C.L.J. 538 were cited apparently with approval and I think, therefore, that the balance of authority must be regarded as in favour of the view taken in those cases and against that taken in Rameswar Singh v. Bhooneswar Jha 4 C.L.J. 138, 33 C. 837.