SIBA KUMARI DEVI Vs. DOSHI GHOSAIN

JUDGEMENT

(1.) These are three appeals from a decision of the District Judge of Nadia, sitting as a special Judge affirming a decision of the Assistant Seltlement Officer of Krishnagar.

(2.) In each of these cases the landlord appellant made an application to the Settlement Officer for a settlement of fair and equitable rent. The application appears, to be in a printed form, and it is somewhat difficult to make sure of the nature and exact scope of the claim intended to be conveyed by it. The body of the document appears to raise every possible claim including questions of excess area of lands. However, taking the document as a whole, we are not satisfied that the only matter dealt with by that application is settlement of rent within the meaning of those words in Section 109A, and we are not prepared to say that in these cases there is no right of second appeal. Accordingly it becomes necessary to examine into the particular facts.

(3.) In S.A. No. 1159 it appears that an application was made within two months of the final publication of the Record-of-Rights. It would seem that the Record-of-Rights recorded the tenancy in the name of a lady, Bhussani. The Record-of-Rights was finally published in November 1922. On 14 April 1923, the defendant Doshi Ghosain was added as a party. It then turned out that, while she was added as being the heiress pf Bhussani, she was not the heiress of, but a purchaser from, Bhussani. In these circumstances she set up a defence to say that she purchased a jama bearing a rental of Rs. 9-12-9. The learned special Judge said that it was unnecessary to decide the question of fact whether the land appertained to the jama of Rs. 9-12-9. The Assistant Settlement Officer having found the point in favour of the defendants and the landlord being desirous of contesting it before the Court, the learned special Judge proceeded upon the footing that as Doshi Ghosain was brought on the record on 14 April 1923, the proceedings against her were out of time because she was not impleaded until after two months from the final publication of the Record-of-Rights. It does not seem to me that that view is consistent with the decision of this Court in the case of Bir Bikram Kishore V/s. Ambika Gharan A.I.R. 1926 Cal. 1037. There three Judges of this Court laid it down that when Section 105(1), Beng. Ten. Act, speaks of an application it is not necessary for the landlord or the tenant, in making the application to name any person. It is only necessary to indicate the holdings in the record in respect of which a settlement; of fair and equitable rent is sought. Accordingly there was a perfectly good application in this matter brought within the two months and, on the doctrine of that case, it appears to me that this matter ought to go back to the learned special Judge, the preliminary objection as to time being overruled, in order that he may decide the case upon its merits. The appellant is entitled to her costs of this appeal.