DURGA MOHUN GANGOPADHYA Vs. SUKUMAR DAS

JUDGEMENT

(1.) This is a suit for rent; and the plea advanced by the defendants is that there has been a commutation under Section 40 of the Bengal Tenancy Act. As regards the years 1315 and 1316, if that plea is good it furnishes an answer. But the plaintiffs take exception to the commutation proceedings or at any rate to their finality; for he says under Section 40 there can be no commutation unless the tenant is an occupancy raiyat and unless he pays for the holding rent in kind, or on the estimated value of a portion of the crop or at rates varying with the crop, partly in one of those ways and partly in another, or partly in any of those ways and partly in cash. The plaintiffs say that this question must be decided in this suit and that it is open to the Civil Court to question the jurisdiction of the Revenue Authority.

(2.) The judgments of the Munsif as also of the Subordinate Judge and of Mr. Justice Hoy are all against the plaintiffs. The judgment of the Munsif is to the effect that the tenant was an occupancy raiyat and that the rent was payable in kind, so that the learned Judge affirmed the competence of the Revenue Court s proceedings the other two Courts, however, did not follow this procedure but treated the matter as concluded by the decision of the Revenue Court and on that ground have upheld the defendants plea.

(3.) I do not wish to say that there is nothing to be said in support of that view. But whether it be right or whether it be wrong, I consider we are bound by a decision of an Appellate Bench of this Court in Kali Krishna v. Ram Chandra 29 Ind. Cas. 896 : 21 C.L.J. 487 : 19 C.W.N. 823 which directly decides the point in discussion before us, and determines that Civil Courts can consider the competence of the Revenue Courts in commutation proceedings where a suit is brought for recovery of arrears of rent as determined by these proceedings. 1, therefore, accept that decision as binding on me. In view of that decision it is manifest that the judgment of Mr. Justice Hari Nath Roy cannot stand, nor can that of the lower Appellate Court. We must, therefore, in deference to the decision I have cited, vary the judgment of Mr. Justice Roy so far as it relates to the rent for the years 1815 and 1316 and also set aside the decree of the Subordinate Judge as regards these two years and send back the case in order that it may be determined whether the commutation proceedings were competent. The case must, therefore, go back to the lower Appellate Court for the determination on the record as it stands, and the costs of the litigation hitherto incurred will be dealt with in the lower Appellate Court and the Judge will in this connection have regard to the extent to which the plaintiffs claim is conceded. N. Chatterjea, J.