DHARANI MOHAN RAY Vs. ASUTOSH MUKERJI

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Walmsley in a suit for arrears of rent.

(2.) The plaintiff-appellant instituted this suit against the defendants-respondents for recovery of arrears of rent due in respect of a tenancy held at Rs. 3-9 per annum. The defendants contended that they were not liable as the tenure was rent-free. This contention was overruled and the suit was decreed by the primary Court. On appeal, the decision was affirmed by the Subordinate Judge. The judgment of the two Courts went against the defendants on the ground that they were bound by a decree in a proceeding under Section 105, Bengal Tenancy Act, and that they had failed to establish what they had asserted, namely, that the decree was made without jurisdiction. On appeal to this Court the defendants urged that they were not precluded by the provisions of Section 109, Bengal Tenancy Act, from proving that they held the land rent free. This contention was accepted by Mr. Justice Walmsley and he remanded the case for enquiry whether the evidence proves that the defendants are liable to pay rent, and if so, at what rate. We are of opinion that this order cannot be supported.

(3.) It appears that the Record of Rights in this case was finally published on the 16th December, 1912. This record contained an entry to the effect that the defendants held the land without payment of rent, but that the land was liable to be assessed with rent. The landlord thereupon instituted a proceeding under Section 105, Bengal Tenancy Act, for assessment of fair rent. The tenants contended that they held the land rent free. Consequently the question contemplated by Section 105A Clause (a) arose, namely, whether the land was or was not liable to payment of rent. It thereupon became incumbent upon the Revenue Officer to try and decide that issue and to settle rent under Section 105 if he should Hold that the land was liable to payment of rent. It is not clear what took place before the Settlement Officer. But this much becomes obvious on an examination of the Record of Rights that on the 15 November, 1913 rent was assessed at the rate of Rs. 3-9 per annum. It has been stated that this order was made by consent of parties; but that is immaterial for our present purpose, because under Clause (6) of Section 105, where the parties agree amongst themselves, by compromise or otherwise, as to the amount of the fair rent, it is incumbent upon the Revenue Officer to satisfy himself that the amount agreed upon is fair and equitable, and it is only if he is so satisfied that he can record the amount agreed upon as the fair and equitable rent: if he is not so satisfied, he has to settle a fair and equitable rent as provided in Sub-sections (4) and (5).