YAQUB ALI Vs. DHAN SINGH

JUDGEMENT

(1.) This appeal raises a question of some importance. The facts are as follows:

(2.) The plaintiffs-appellants are, according to the statements in the plaints, residents of Bulandshahr City. They own Zemindari in the village of Bahlimpura. The defendant-respondent is an occupancy tenant in Bahlimpura holding 8 bighas and 3 biswas in occupancy tenancy. The plaintiffs sued the defendant for the rent of 1327 Fasli, that is to say 1919--20, and calculated the rental on a grain basis according to which it amounted to about Rs. 160 which worked out to Rs. 20 a bigha. In the plaint it was admitted that the entry in the revenue papers showed that the defendant was liable only to pay Rs. 61 as cash rent and the plaint contained the argument plaints in Revenue Courts frequently are argumentative that a mistake had been made and that, somehow or another, the rent had been commuted from grain rent to cash rent without the knowledge of the plaintiffs or their ancestors. The argument continued that the rent had formerly been a grain rent and that it should remain as a grain rent. The defendant replied that in the progress of a recent Settlement the Assistant Settlement Officer had commuted the rent from grain rent to a cash rent on the 29 August 1918 and that he had tendered the rent as fixed by the Assistant Settlement Officer to the zemindars who had refused to accept it. The Assistant Collector who heard the case was not satisfied with the entry in the patwari's papers which show Rs. 61 as the amount of rent fixed upon this occupancy holding at the time of the Settlement but went into the question as to how that rental had come to be fixed. He ascertained that the rental had formerly been a grain rental but that the Assistant Settlement Officer had, under the provisions of Section 88, Local Act III of 1901, commuted the grain rent into a cash rent. He considered, however, that that order of the Assistant Settlement Officer was null and void because upon enquiry it was ascertained that by a mistake not of the defendant but of some clerk in the Settlement Office notice had not issued to the plaintiffs in this case that these proceedings were in progress. Ha accordingly decreed the higher rental against the defendant. The defendant appealed to the District Judge who took the view that the rate of rent to be allowed was the rate fixed by the Assistant Settlement Officer.

(3.) We are not concerned with the decision of the point whether the plaintiffs- appellants were or were not prejudiced by the omission to give them notice of these proceedings. We consider it exceedingly unlikely that they had no knowledge of the proceedings for, on facts before us, the Settlement authorities were commuting grain rents not only in respect of this holding but in respect of many others in the village. Ordinarily, these absentees would have an agent in the village who would generally be fully conversant with the proceedings of the Settlement Department. Further, the Settlement arrived at must have been put before them for acceptance. No attempt was made by the Assistant Collector to ascertain whether they had or had not been prejudiced in reality. The view which he took was that the Assistant Settlement Officer's order was ultra vires and that he should not decree the the suit according to the recorded rates but was obliged to go back to what had occurred before those rates were recorded and put the matter right. In other words, he arrogated to himself the functions of a Court of Revision over the Assistant Settlement Officer. In our opinion the matter is very clear in a case like this. In rent suits in the Revenue Courts against occupancy tenants the Courts must award rent at the rates which are fixed upon the papers unless those rates are entered erroneously by a clerical mistake, and where there is a binding order of competent authority, such as an order by the Settlement Officer under Secs.87 and 88, Local Act III of 1901 or under Secs.43 to 46, Local Act II of 1901, the Court has no discretion but must allow the rent at the rates directed. If either the landlord or the tenant has any objection to those rates he must apply to the proper authorities to have those rates altered, but the Court trying a suit for arrears of rent has no authority in the matter. This is sufficient to dispose of the appeal which, in my opinion, should be dismissed with costs on the higher scale. Mukerji, J.