Narohary Jana vs Hari Charan Pramanick and Others

Hill and Rampini, JJ.—This is a second appeal against an order of the Special Judge of Midnapore, dated the 9th August 1897, holding that no appeal lies to him from an order of a Settlement Officer, finding that the standard of measurement to be used in measuring the lands of a village, named Joyram Chuck, is a pole of 7 feet 9 inches. The appellant, who is the landlord of the village, contended that the standard of measurement is a pole of 7 feet 5 1/2 inches.

It appears to us (1) that no second appeal lies to us, and (2) that the decision of the Special Judge is right and that no appeal lay to him.

We think no second appeal lies to us because the decision of the Special Judge is not a decision in a case u/s 106 of the former chapter X of the Bengal Tenancy Act, which was in force when the order of the Special Judge was passed. The dispute between the parties was not a dispute as to the correctness of an entry in the record of rights for the following reasons: (1) there is no entry in any record of rights as to the standard of measurement; (2) no record of rights has been made or is at present being made; and (3) there is at present nothing to show that the question of length of the standard of measurement will even indirectly affect any entry in the record of rights.

The learned pleader who appears for the appellant, however, relies on the eases of Mathura Mohan Lahiri v. Uma Sundari Debi I.L.R (1897) . 25 Cal 34, and Dengu Kazi v. Nobin Kissori Chowdhrani I.L.R (1897) 24 Cal., 462, under the former of which he contends a second appeal does lie to this Court from a decision of a Settlement Officer about the standard of measurement, and the second of which shows that a dispute may be raised at any time about an entry or even a proposed entry in the record of rights. But the facts of the case of Mathura Mohun Lahiri v. Uma Sundari Debi , are very different from thoseI.L.R (1897) 25 Cal., 34 of the present one. In that case there had been a measurement, the landlords had applied for a settlement of rents, and the parties disputed, not only in respect of the standard of measurement, but as to whether the tenants were in possession of excess lands, and whether they held their lands on a consolidated rent or not. There was an appeal to the Special Judge on all these points.

The facts of the present case are quite different. The Settlement Officer at the time when his decision now under appeal was passed had, as far as we can see, done nothing but settle the length of the measure he was about to use in the measurement of the lands of the village. He had not measured the lands, ascertained the area of the tenants'' holdings or either recorded or settled rents. There was then no record of rights and no entry or even proposed entry in a record of rights, and hence we consider neither of the cases cited by the pleader has any application to the present case.

Then the Special Judge has pointed out that the question of the standard of measurement cannot affect; any of the records which form the record of rights. These are the khewat and khatian--see the Government rules under the Tenancy Act, chapter VI, Rule 8. The former is a record of proprietary interests. The latter is a record of tenants'' rights, the entries in which only can form the subject of dispute between the parties to this case. But the area of the tenants'' holdings in the khatian is entered in acres (see cols. 5, 6, 7 and 8). This is in accordance with Section 92 of the Act and Rule 64 of the Board''s Settlement Manual. The question of the local standard of measurement cannot affect the entries in these columns. The only columns the entries in which may possibly be affected by the question of the local standard of measurement are columns 9 and 10. In column 9 is recorded the existing rent. If this is a lump rental, the question of the standard of measurement cannot affect it. If it is a fluctuating rental at so many rupees per bigha, it may affect it. But it remains to be seen what entry will be made in this column. Column 10 is the column in which is entered the rent settled by the Settlement Officer, if he finds it necessary to settle any rent. He will not have to do so, unless the raiyats are found in possession of excess lands. Hence, there is at present no certainty nor indeed any reasonable ground for supposing that any entry in the record of rights will be affected by the question of the local standard of measurement. The contention of the parties at present is neither an "objection" u/s 105, nor a "dispute" u/s 106.

Thus, the order of the Settlement Officer, being an order neither u/s 105, Section 106 nor Section 107, is not a decision under chapter X of the Act for there is no other section in the chapter under which a Settlement Officer can decide anything. That being so, no appeal lay from his order to the Special Judge u/s 108(2), and the Special Judge''s order not being a decision u/s 106, no second appeal lies to us u/s 108(3).

We accordingly dismiss this appeal with costs.