SRISH CHANDRA RAY Vs. GAHARALI TALUKDAR

JUDGEMENT

(1.) In the suit out of which this appeal has arisen the plaintiffs sued to recover rent for four years of a certain 4 45 acres of diara land at a jama of Rs. 29-3-6. The defendant's case was that they held a nim howla under the plaintiffs which comprised some 17 odd acres at an annual jama of Rs. 21-10-7.

(2.) The first Court found that this jama of 545 acres had been carved out of a larger jama of 17 acres by the Diara Deputy Collector. The trial Court held that the diara assessment could not supersede the Record of Rights unless it was shown that the tenants were parties to the diara proceedings, and on this finding he dismissed the plaintiffs suit. The plaintiffs appealed to the District Court. The District Court held that the Diara Deputy Collector acting under Regulation 7 of 1822 had no power to assess the rent to be paid by a tenant to a zemindar. All that he could do was to record what rents were actually being paid by the tenants, and in this view of the law he dismissed the plaintiff's suit. The plaintiffs have appealed to this Court and it has been argued on their behalf that a Diara Collector had power under Regulation 7 of 1822 to assess rents that were to be paid by the tenants to the talukdars.

(3.) In support of this contention reliance-has been placed on an unreported decision of this Court in Letters Patent Appeals Noa. 35, 36, 37 and 38 of 1920 Gopal Chand Biswas v. Jahanulla Sheikh decided on the 11 August 1920. This authority does not really support the point that Mr. Talukdar would, ask us to hold that it does. All that this decision lays down is that where tenants were not parties to the proceedings under Regulation 7 of 1822 they were not, bound by the proceedings. That is not the same as holding that a Diara Deputy Collector had the power to assess and fix rent under Regulation 7 of 1822. On the other hand there is a long; course of decisions beginning with the case of Jagadindra Nath Roy V/s. Mohendra Nath Mozumdar [1919] 23 C.W.N. 587 where it is held that a Diara Deputy Collector acting under Regulation 7 of 1822 had no power to assess rents of the tenants, but he could only record rents that were being paid, by the tenants. This point is, therefore, decided against the appellants.