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Judgment
Manohar Lall, J.—The plaintiff appeals from a decision of the Subordinate Judge of Arrah dated 29th May 1940 by which his suit which he had instituted in effect for recovery of arrears of rent for 1342 45 Fs. has been dismissed.
The facts are quite simple and are no longer in controversy. The plaintiff is the 16 annas proprietor of village Nagsinghanpur. Before the year 1910 the defendants had a holding of 23 bighas 1 katha 14 dhoors at a rental of Rs. 51-11-9 under the plaintiff and this was the basis upon which the record of rights was prepared in 1910 or 1911.
Under the provisions of Section 105, Bengal Tenancy Act, the plaintiff instituted a proceeding in the year 1911 for determination that the defendants were liable to pay additional rent for the additional area of this holding. The case of the plaintiffs was that the defendants were in possession of 32 bighas 17 kathas 5 dhoors, not of 28 bighas 1 katha and 14 dhoors.
The defendants contested the proceedings and were successful in the Court of the revenue officer who originally disposed of the matter by a judgment of the year 1918. The plaintiff appealed to the Special Judge as provided by law and on 12th July 1915 that Special Judge decided the appeal in his favour holding that the plaintiff was entitled to rent at Rs. 66-4.6 for the holding of 32 bighas 17 kathas 5 dhoors; but unfortunately owing to an error or oversight in the office no schedule of rent was prepared nor as provided by Section 107(2)
any note of the rents settled u/s 105, and of all decisions of issues or disputes u/s 105A or Section 106 was made in the record of rights finally published under Sub-section (2) of Section 103A; so that such note shall be considered as part of the record.
The plaintiff instituted a suit for recovery of arrears of rent in the year 1935. He alleges that when the written statement was filed in that rent suit he came to know for the first time that the office of the Special Judge had omitted to prepare a schedule of rent as settled by him while disposing of the appeal of the plaintiff. Accordingly as the judgment in that rent suit shows the plaintiff agreed to have a decree for rent for the years in that suit at a rate admitted by the defendants, both parties agreeing that the question of the rate and jama should be left open. Three years later, the plaintiff instituted the present suit in 1938 for recovery of arrears of rent for the period already stated. It should be observed here that the plaintiffs framed his plaint in such a way as to give the impression that he was asking for a declaration that the defendants were liable to pay excess rent for the excess land under the provisions of Section 52, Bengal Tenancy Act.
The learned Munsif by his judgment dated 30th May 1939 came to the conclusion that the question of additional rent for, excess area was concluded between the parties by reason of the judgment Ex. 2 of the year 1915 already referred to. Accordingly he held that the plaintiff was entitled to recover excess rent for the additional area as claimed by him. He decreed the suit on these findings in part on contest against defendant 1 and ex parte against the others. He also added in his order a declaration that the plaintiff was entitled to get excess rent for the additional area as claimed for the holding in suit as he described it at length at the concluding portion of his order.
Against the judgment of the Munsif there was an appeal before the learned Sub-ordinate Judge who took the view that the suit as framed was not maintainable because there was a proceeding u/s 105, Ben. Ten. Act, regarding the subject-matter of the suit and therefore u/s 109, Ben. Ten. Act, the civil Court was incompetent to enter into the question again. He pointed out that it was beyond the function of the civil Court to prepare a decree which had been omitted to be prepared by the staff of the Special Judge and the remedy of the plaintiff, if any, lay in moving that Special Judge for preparing the schedule according to his decision embodied in Ex. 2. Hence this second appeal to this Court.
This appeal originally came to be heard by a Single Judge who has referred the whole appeal for a decision by a larger Bench. In my opinion there is no answer to the contention raised by the appellant that he is entitled to have a decree for rent at the rate which was conclusively determined between the parties by the decision of the Special Judge in the year 1915. Section 107(1) clearly provides that in all proceedings u/s 105, 105A and 106 the Revenue Officer shall adopt the procedure laid down in the CPC for the trial of suits and his decision in every such proceeding shall have the force and effect of a decree of a civil Court in a suit between the parties, and, subject to the provisions of Sections 108 and 109A shall be final.
It was argued strenuously on behalf of the respondents that inasmuch as the office of the Special Judge had not prepared any schedule of rents as required by Sub-section (2) that decision ceased to have any force and effect whatsoever and that the matter was at large between the parties which could be decided over again by a civil Court were it not for the prohibition that the civil Courts are debarred from taking cognizance Of the matter once more. In other words, the argument was that notwithstanding the decision which if the schedules had been prepared would have had the force and effect of a decree conclusive between the parties this position is no longer of any avail to the plaintiff and the plaintiff is debarred from ever enforcing his rights which were deter, mined in his favour by a decision passed ort contest between the parties.
But reliance was placed upon a decision of the Calcutta High Court in Pratap Chandra Jana Vs. The Secretary of State for India in Council, . In that base the question for consideration was the effect of an omission to correct the record of rights in a proceeding under Part 2 of chap. 10-which relates to a situation where the land revenue is being settled or about to be set tied. It was pointed out that Section 108B which finds a place in Part 1 does not operate to modify the effect of Section 104J which finds a place in Part 2. To quote the words of Mookerjee J., at p. 1031:
The substance of the matter is that the entry in the record of rights is conclusive, unless altered'' by means of a suit instituted u/s 104H, Sub-section (2) within six months from the date of the certificate of final publication of the record of rights, or, if an appeal has been presented to a revenue authority u/s 104G, then within, six months from the date of the disposal of such appeal. The expression "deemed to have been correctly settled" would he meaningless, if the entry raised only a rebuttable presumption.
The decision of the special officer here related to the settlement of land and decided a dispute when the settlement of land revenue was not being or about to be made. The settlement of such a dispute between the parties will not have the least effect upon the land revenue. In my opinion the only effect of the non-preparation of the schedule was that the record of rights which was finally published u/s 103A(2) has not been altered. Therefore it retains the presumption of correctness in favour of the defendants. It was therefore incumbent upon the plaintiff to prove that the entry in the record of rights is not correct. He proves it by evidence including the decision of the Special Judge which as provided by Section 107(1) has the force and effect of a decree of a civil Court in a suit between the parties and shall be final.
In face of these clear statutory provisions the plaintiff''s suit was rightly decreed by the learned Munsif. For these reasons I set aside the decision of the learned Subordinate Judge and direct that a rent decree be prepared in favour of the plaintiff, the amount to be calculated in the manner indicated by the Munsif.
In other words the decision of the Munsif is restored. The plaintiff is entitled to his costs of this appeal and of the Court below. He has already been awarded costs by the learned Munsif in his Court.
Rowland J.
I agree.