1. This appeal has been admirably argued before us by thetwo learned juniors, Babu Probodh Chandra Datta on behalf of the appellant andBabu Charu Chandra Biswas on behalf of the respondent, and their argumentleaves nothing further to be considered; and so it is that notwithstanding itscomplications, we feel that we can dispose of the case without reserving ourjudgment.

2. The appeal is from a judgment of Mr. Justice Coxe, whoconfirmed the decree of the lower Appellate Court. By the suit, theplaintiffs-respondents sought a declaration of right to a parcel of landbearing No. 166 and for transfer of the same to Touzi No. 1693. On the merits,this salt must be decided on a compromise which terminated the previouslitigation, and we desire to base our judgment upon the ground that thecompromise was a binding agreement between. the parties, and none the lessbinding because it was followed by a decree. This is a principle that has theauthority of the judgment in Wentworth v. Bullen (1129) 9 B, & C. 840 : 9L.J. (o.s.) K.E. 33 : 109 Eng. Rep, 313 : 33 14. R. 353, where it was said that"the contract of the parties is not the less a contract, and subject tothe incidents of a contract, because there is superadded the command of theJudge," On that ground, as we indicated on the last occasion, our decisionmust be against the appellant on the merits.

3. It was, however, ingeniously suggested to us that as thissuit purports to be under section 106 of the Bengal Tenancy Act, it really isincompetent, inasmuch as those conditions do not exist which are requisite inorder that a suit under that section may be brought. As it was not clear on thematerials upon the record whether a settlement of land revenue was being orabout to be made in connection with the Record of Rights which has given riseto this suit, we allowed the case to stand over in order that definiteinformation might be obtained on that point. We have been able to ascertainthat there has been an order by the Local Government with the previous sanctionof the Governor-General in Council in exercise of the powers conferred bysection 101, sub-section (1) of the Bengal Tenancy Act, that a Record of Rightsshould be prepared in respect of lands which included those now in suit. Wealso have reason to suppose that there was no settlement of land revenue beingmade or about to be made. On that basis, we will dispose of the suit.

4. For the plaintiff, respondent, who has to establish thecompetently of this suit, it is contended that section 106 does apply in thecircumstances of this case. It is said that there has been a Record of Rights,that disputes have arisen, and that a suit under section 1C6 is necessary forthe purpose of a decision of those disputes, seeing that this is a case where asettlement of land revenue was not being or about to be made.

5. By way of answer to that, it is objected that section 106is contained in Part III of Chapter X and that the fair meaning of theprovisions contained in that part is that its provisions cannot be called intoplay unless there has been an application either by the landlord or the tenantfor a settlement of rent. It is said that there was no such application and,therefore, the provisions of Part III do not apply.

6. It must, I think, be conceded that the Bengal Tenancy Acthas lost in clearness as it has increased in bulk and that the more recentgrowths have not tended to preserve the original, unity of the Act. The Act, asoriginally drawn, was clear in its scheme. and its provisions, butunfortunately it was found that the purpose of the Legislature had failed incertain respects, and so from time to time there have been what are calledamendments of the Act; and, it is by reason of those amendments that we are inthe difficulty which confronts us to-day.. Now Chapter X, as it at presentstands, substantially reflects that Chapter as enacted by Bengal Act III of 1893.I will, therefore, turn to that Act in the first instance to see what itprovides. The heading of the Chapter is "Record of Rights and Settlementof Rents." Part I is headed Record of Rights. Part II. commences withsection 104 and its original heading was as follows:-- Settlements of Rents,Preparation of Settlement Rent Roll, and Decision of Disputes in cases where aSettlement of Land Revenue is being or is about to be made." Part IIIwhich commences with section 105 is headed Settlement of Rents and Decisionof Disputes in cases where a settlement of land revenue is not being, or is notabout to be, made." Part IV", which begins with section 110. isheaded, "Supplemental Provisions" It, has been pointed out that itspreamble treats the Bengal Tenancy Act as one to amend and consolidateenactments relating to the law of landlord and tenant, and so, it is said, thatit is not in conformity with that scheme to utilise section 106, in a casewhere the relation of landlord and tenant is not in question.

7. While I recognise the force of this argument, still I amof opinion that section 106 must be taken to apply even where there may not bea settlement of rents, provided a settlement of land revenue is not being or isnot about to be made. My reason for so thinking is, first, that we have as theheading of that part not only the phrase Settlement of Rents" but alsothe expression Decision of Disputes." I do not forget that the heading ofPart II, as originally framed, also contained the phrase "Decision ofDisputes", but this has been amended by Bengal Act I of 1907, section 23,whereby the expression "disposal of objections" had been substitutedfor "decision of disputes." This alteration was before the events towhich the present litigation relates. This amendment of the Act, coupled withthe phraseology of Chapter X, leads me to the view that the Legislature usedeach of the expressions "decision of disputes" and "disposal ofobjections" as a term of art, each referring to a different. stage of theproceedings under Chapter X. The importance of this expression "decisionof disputes" in the heading of Part III is that it indicates an intentionon the part of the Legislature that where a settlement of land revenue was notbeing or about to be made, a dispute as to an entry in the Record of Rights,though there was no "settlement of rents," should be decided by themachinery provided in section 106. That section, as it originally stood in ActIII of 1898, is, I think, clearer in its support of this view than the sectionas subsequently amended. As it originally stood, it was described in themarginal note as * Decision of disputes by Revenue Officers" and it was inthese terms: "If in any case under this part a dispute arises at any timewithin two months from the date of the certificate of the final publication ofthe Record of Rights under section 103A, sub-section (2), regarding any entrywhich the Revenue Officer has made in, or any omission made from, the record,whether such dispute be between landlord and tenant, or between landlords ofthe same or of neighboring estates, or between tenant and tenant, or as towhether the relationship of landlord and tenant exists, or as to whether laudheld rent free is properly so held, or as to any other matter--a suit may beinstituted before the Revenue Officer, by presenting a plaint on stamped paper,for the decision of the dispute; and the Revenue Officer shall then hear anddecide the dispute." The section has since been amended, and matters havebeen introduced into it which perhaps have not tended to make the sectionclearer for this particular purpose. But I do not think that the amendment ofthe section, and, in so saying, I particularly bear in mind the proviso onwhich Babu Probodh Chander Dutt relied, was aimed at altering the generalscheme of Part III.

8. The matter is, I think, made even clearer in favour ofthe view that I have indicated, by the introduction of section 105A. It has tobe recognised that much that is now contained in Part- III of Chapter X isoutside the just limits of the preamble to the Act; still the preamble cannotgovern clear expressions in the enacting part, and the conclusion to which Icome is that where a settlement of land revenue is not being or is not about tobe made, a dispute as to an entry in the Record of Rights, though arising underPart I, Chapter X, is a matter that can be decided under section 106.

9. It is on the grounds which I have expressed, that wethink the decision under appeal should not be disturbed, and we must,therefore, dismiss this appeal with costs. Again, I desire to recognise thevaluable assistance which we have received from the Bar.

.

Keshab Panda vs.Bhobani Panda (14.07.1913 - CALHC)