BEHARI LAL MALLIK Vs. PRIYA NATH SARDAR

JUDGEMENT

(1.) This appeal is directed against an order by which a Special Judge, under Chapter X of the Bengal Tenancy Act, has in concurrence with the Settlement Officer dismissed an application by a landlord for settlement of fair and equitable rent under Section 105 of the Bengal Tenancy Act. The applicant in his petition under Section 105 stated that he had a one-fifth have in the revenue-paying estate of which eight other persons, who were joined as co-sharer defendants in these proceedings, held the remaining four-fifths share. The petitioner alleged that the tenant defendant had been recorded in the record-of-rights, which had been finally published on the 15th May 1913, as a mourasi mokarari, tenant in respect of a certain area, thus the tenant was really in occupation of a larger quantity of land than what was comprised in his tenancy, and that the rent was enhance able. The petitioner further stated that his co- sharers had refused his invitation to join him in the application, because they were in collusion with the tenant defendant and were anxious to have improper gain. On these allegations, the petitioner prayed that the Settlement Officer might settle fair and equitable rent payable by the tenant under Section 105 of the Bengal Tenancy Act. The Settlement Officer dismissed the application on the ground, that it was barred under Section 188 of the Bengal Tenancy Act which provides that where two or more persons are joint laud-lords, anything which the landlord IN, under the Act, authorised to do must be done either by both or all those persons acting together or by as agent authorised to act on behalf of both or all of them. This order has been continued on appeal by the Special Judge. On the present appeal, the decision of the Special Judge has been assailed substantially on three grounds, namely, first, that inasmuch as the appellant had taken proceedings under Section 103 of the Bengal Tenancy Act, he was competent alone to maintain a proceeding under Section 105; secondly, that as the Settlement Officer was invited to settle fair and equitable rent after determination of the question, of the status of the defendant and of the area of the land in his possession, the proceeding was not in substance one under Section 105 but rather fell within the scope of Section 106; and, thirdly, that as the co-sharer landlords had acted in collusion with the tenant and had refused to join the plaintiff in the institution of: a proceeding under Section 10 (5) there had been a severance of the co-tenancy by operation of law, and that the parties occupied the position of separate landlords.

(2.) As regards the first contention, it may be conceded that Section 103, as it stands in its amended form, authorises one or more of several proprietors to apply to a Settlement Officer to ascertain and record all or any of the particulars specified in Section 102 with respect to the estate of which he is a proprietor. But it is worthy of note that although the Legislature has amended Section 102 so as to make Section 188 no longer applicable to bar an application under that section by one or more of several joint proprietors, there has been no corresponding change in Section 105. Section 105 speaks oil an application for settlement of fair and equitable rent by either the landlord or the tenant. If the application is by the landlord, it must obviously be presented by the entire body of persons who are joint landlords. It has been argued that this view is likely to cause hardship to innocent landlords, who are not able to obtain the concurrence of obstructive co-sharer landlords in the matter of an application under Section 105. This, however, is a matter for the Legislature to consider. It is plain that there is a fundamental difference between the scope of Section 103 and Section 105. Section 10) contemplates a record of existing facts, while Section 105 contemplates an alteration of existing facts; the Legislature may well have thought that while a record un existing facts may be permitted to be made at the instance of one or more of several joint landlords, the existing facts should not be allowed to be altered at the instance of a co-sharer landlord. But whatever the reason may be for the obvious distinction between Section 103 and Section 105, it is plain that, as pointed out in the ease of Maharaj Kumar Krishna Das Law v. Girija Nath Roy Sardar 3 Ind. Cas. 472 : 10 C.L.J. 458 they do not stand on the same footing and, that, not with standing the amendment of Section 103, the rule still holds good that an application under Section 105 for settlement offair and equitable rent cannot be maintained at the instance of one out of several joint landlords.

(3.) As regards the second contention, it is plain that the question is not affected by the circumstance that in tin s particular case the landlord challenges the entry in the Record of Rights both is regards the status of the defendant and the area of the land comprised in his holding. Under Section 105A the Revenue Officer is competent to try and decide such an issue before the settlement of fair and equitable rent tinder Section 105. Consequently, the proceeding is in essence what it purports to be, namely, a proceeding tinder Section 105 for settlement of fair and equitable rent.