BEPIN KRISHNA KUMAR Vs. HARI DAS GHOSE

JUDGEMENT

(1.) THIS is an appeal by the defendant against the judgment of the learned Subordinate Judge of Hooghly, dated the 17th December 1913, affirming the decision of the Munsif at Howrah. The suit was brought by the plaintiffs , the tenants, against the defendants, the landlords, for a declaration that the entry in the Record of Rights was wrong and that they were permanent tenants at a fixed rate and not settled raiyats as entered in the record. The Record of Rights in this case was finally published on the 29th October 1907; that is, after the date on which Act I (B. C.) of 1907 came into force, : which amended the Bengal Tenancy Act by adding a new section (Section 105 A). On the 29th November 1907 an application was made by the landlords, the defendants, under the provisions of Section 105 for settlement of a fair rent. On the 28th February 1908 an order was passed settling a fair rent under which the rent of the tenants was somewhat enhanced. Then the tenants brought the present suit. The only question is whether the present suit is maintainable. Before Section 105A came into force, the decisions of this Court show that, when the Settlement Officer was dealing with an application to settle a fair and equitable rent, he could not go behind the Record of Rights. He was bound to accept the entries that appeared there. That was the view which Mr. Justice Teunon and myself took in the case of Shashi Bhusan Hazrah v. Sheikh Esabar Ali 29 Ind. Cas. 122 : 19 C.W.N. 686. It appears that the record in that case was finally published in the year 1903. It was clearly a case to which Act I (B. C.) of 1907, which enacted for the first time Section 105A, could not apply. But the present case must be dealt with reference to the new section that has been added by Act I (B. C.) of 1907. Now, Section 105A was expressly enacted to meet the objection that had been raised in the oases referred to, so as to enable the Settlement Officer who was hearing an application for settlement of rent to decide certain issues which the Court had held that he was not entitled to decide in an application under Section 105. Amongst these issues which the Settlement Officer was authorised to decide by Section 105A was issue No. (e) of that section, namely, whether the tenant belonged to a class different from that to which he was shown in the Record of Rights as belonging. That being so, it is quite clear that the Settlement Officer had in this case jurisdiction to enquire as to whether the tenants belonged to the class to which they were shown in the Record of Rights. The question is, "did he so enquire"? It is quite clear that he did. The written statement set up a case that the rent was not liable to enhancement The learned Settlement Officer by his decision decided that the rent was enhancible and ought to be enhanced. Therefore, he must have come to a definite and clear conclusion that the status of the tenants was one of tenants whose rent was liable to be enhanced. That being so, under Section 109 of the Act, a Civil Court is prohibited from entertaining any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Sections 105 to 108 (both inclusive). That includes, of course, the new Section 105A. It seems to me quite clear, on a reading of the new section along with Section 109, that, in this case, the Settlement Officer having decided that the tenants were not tenants at fixed rates of rent but were liable to have their rents enhanced and their rents having been enhanced, it was not competent to the Civil Court, having regard to the terms of Section 109, to enter into and enquire what was the status of those tenants. That being so, the judgment of the lower Appellate Court is, in my opinion, wrong. We should, therefore, allow the appeal and dismiss the plaintiffs suit. The plaintiffs-respondents must pay to the defendants-appellants their costs in this Court as well as in the Courts below. Teunon, J.

(2.) I agree.