RAM BISHEN RAUT Vs. RAJARAM

JUDGEMENT

(1.) This is an appeal brought by the tenant-defendants against the judgment in a proceeding which was taken by the zemindars under Section 105 of the Bengal Tenancy Act for the purpose of settling a fair and equitable rent of the lands held by the defendant.

(2.) It has been stated that the plaintiff purchased the mahal, in which the lands lie, on the 5 July 1897, at a sale held for years of revenue. Finding a difficulty in getting rents, he applied under Section 163A of the Bengal Tenancy Act for a cadastral survey, and accordingly a record-of-rights was made and published in September 1903. After that, the record containing a statement that the rents had not been fixed, he took proceedings under Section 105 of the Bengal Tenancy Act for the purpose of getting the rents payable for the lands fixed. A preliminary objection has been taken by the respondent to the hearing of this appeal. The respondent says that no appeal lies, because under Section 109A(3) of the Bengal Tenancy it is provided: "Subject to the provisions of Chapter XLII of the Civil P. C., an appeal shall lie to the High Court from the decision of a Special Judge in any case under this section (not being a decision settling a rent) as if he were a Court subordinate to the High Court within the meaning of the first section of that Chapter." The respondent contends that this was a decision settling a rent under Section 105 of the Bengal Tenancy Act, and that, therefore, the appeal is barred by the provision of the section, which we have just read.

(3.) The learned Counsel, who has appeared for the appellant, contends that there is an appeal, because he says Section 105(1) is only applicable to cases where a proper record-of- rights has been made, but that in this case no proper record-of-rights has been made, because the Settlement Officer, whose duty it was to insert the rent with record payable by the tenant has not inserted the rent, but has inserted a statement that the rents have not been fixed. It is contended that the effect of Sub-section 4 of Section 105 is to limit the operation of that section in cases where existing rent is found to be fair and equitable.