Kesheo Prsad Singh vs Bhagwat Saran Pande

Mullick, J.—The plaintiff alleges that he took settlement of 3 bigbas 3 kathas and 16 dhurs of land from Government at rate of Rs. 5per bigha and that ha has acquired occupancy rights therein. The proprietary rights in the land were subsequently sold by Government to the defendant the Maharaja of Dumraon who is now the plaintiff''s landlord.

At the last cadastral survey the area of the holding was entered in the record of rights as 2 bighas 3 kathas and 4 dhurs. Thereafter an application was made u/s 105 of the Bengal Tenancy Act by the landlord for the settlement of fair and equitable rents in the Mouza with the result that the Settlement Officer raised the plaintiff''s rent as recorded in the record of rights from Ra. 15-15 to Rs. 17-13-9.

The present suit is brought u/s 52 of the Bengal Tenancy Act for abatement of rent on the ground that there has been a diminution of area from 3 bighas 3 kathas 16 dhurs to 2 bighas 3 kathas 4 dhurs. The Munsif decreed the suit and allowed an abatement of Rs. 5-12-4 per annum. That decision was affirmed by the District Judge in appeal and also by a learned Judge of this Court in second appeal. The present Letters Patent Appeal is preferred by the landlord.

The learned Judge of this Court finding that the District Judge had committed an error of procedure in relying only upon the pleadings for the purpose of coming to a decision on the question whether the original settlement made with the plaintiff was for a consolidated rental of Rs. 15 15 irrespective ol the area held or at a rental of Rs. 5-per bigha on the area actually held, heard the second appeal before him as a first appeal and examined the evidence himself, and he came to the conclusion that the land was settled with the plaintiff at the rate of Rs. 5-per bigha.

In my opinion it is not necessary for our presett purposes to follow the procedure of the learned Judge and to examine the correctness of the learned Judge''s finding, for the plaintiff must fail upon a question of law.

In order to succeed in his suit the plaintiff must show that he was paying a rent of Rs 17-13 9 upon 3 bighas 3 kathas 16 dhurs and that the land now in his possession according to the same standard of measurement is 2 bighas 3 kathas and 4 dhurs. Now there is BO finding that there has been any diminution of area since the Settlement Officer settled a fair rent for the holding. The learned District Judge does find that the standard of measurement at the inception of the tenancy was the same as that in the cadastral survey, but this is directly in conflict with the finding of the Assistant Settlement Officer who finds that the standard was a pole of 5} cubits in the cadastral survey and 5 cubits at the inception of the tenancy. The record of rights shows 2 bighas 3 kathas 4 dhurs as the area of the holding and from the Assistant Settlement Officer''s judgment it would seem that in his opinion there had been no change in the quantity of land held by the plaintiff and that the difference was due to a difference in the two standards of measurement. It does not appear that in the Courts below regard has been paid to the necessity for finding what was the area in respect of which the Settlement Officer made his assessment.

The next point is that Section 109 is a bar to the present suit. Section 105 requires the Revenue Officer to assess a fair rent upon the area actually held by the tenant, and Section 105(A) empowers him, either at the instance of the parties or of his own motion, to raise certain issues regarding the area and other matters.

In order to assess a fair rent upon a holding it is necessary for the Settlement Officer to ascertain what is the area held and for this purpose he may either accept the area entered in the record of rights or alter it after taking evidence. In the present case the Settlement Officer did not disturb the entry in the record of rights as the area, and the question is whether the determination of the area is a matter which has already been the subject of an application made in the suit instituted or proceedings taken before the Settlement Officer u/s 105. In my opinion the answer is in the affirmative. It is not necessary that a direct issue should have been raised as to the area of the holding. If it was impossible for the Settlement Officer to assess a fair rent in respect of the land held by the tenant without ascertaining the quantity, then the question of area was one of the matters which was the subject of the proceedings u/s 105. In my opinion therefore the question of area cannot be again raised in the present civil suit.

It is contended that there can be no application of the Rule of res judieata by analogy, and reliance is placed upon Nawab Bahadur of Murchidabad v. Ahmad Hussain 24 C.W.N. 223 and Apurba Krishna Roy v. Shyam Ch. Paramanik 24 C.W.N. 22. In my opinion these cases have no application to the facts before us. There is no question at all of applying the Rules of res judicata by analogy. The sole point is whether Section 109 of the Bengal Tenancy Act, which is couched in very wide language, covers the present case. It is contended by the respondent that in the present case the Assistant Settlement Officer never applied his mind to the question of area and that he was only considering whether any enhancement could be allowed on the ground of a rise in prices upon the rental entered in the record of rights, viz., Rs. 15-15. It is urged that a decision on a point which was never raised is it not res judicata merely because it might have been raised. It is difficult to see how the landlord could have raised the point as his case was that there had been no change in the area.

The tenant certainly would not have raised it if he thought that his area had diminished from 3 bighas 3 kathas 16 dhurs to 2 bighas 3 kathas 4 dhurs. But whether the tenant or the landlord raised it or not, it was the duty of the Assistant Settlement Officer to raise it in order to assess the rent. The contention that the Assistant Settlement Officer merely considered how many annas per rupee were to be allowed as enhancement on the ground of rise in prices and that he did not consider the question of area at all implies that the Assistant Settlement Officer neglected to perform his duty, and it cannot be accepted without proof. It may be that every entry in a record of rights need not be the subject of a proceeding u/s 105, and that in respect of soma matters a subsequent suit either u/s 106 of the Bengal Tenancy Act before a Revenue Officer or an ordinary title suit before a Civil Court would not be barred. It is not necessary for our purpose to examine that question. It is sufficient to say that in the present case it baa not been shown that there has been any diminution in the area on which rent was last assessed and that no suit for abatement can He. The appeal is, therefore, decreed with costs to the appellant in all Courts.

Dawson Miller, C.J.

I agree.