Authored By : B.K. Mukherjea, Thomas Hobart Ellis

B.K. Mukherjea, J.

1. This appeal is on behalf of the Province of Bengal and isdirected against a decree of the Subordinate Judge of Nadia, dated 31st July1940, made in a suit commenced by the plaintiff-respondent under Section 104H,Bengal Tenancy Act. The facts lie within a short compass and may be stated asfollows: There is a temporarily settled estate known as Sarkarpara-Naluaparabearing Touzi No. 893 of the Nadia Collectorate. The lands comprised in thisestate were once a part of Bhabananda Deara and were resumed under Regn. 2 of1819 some time in 1828. After resumption, a separate estate was formed which isbeing held in temporary settlement from time to time, the first settlementbeing made in the year 1842. At that time, the proprietor of this estate wasRaja Ram Chandra Roy of Nashipur, and as the Raja refused to take settlementthe estate was settled with Robert Watson & Co., thepredecessor-in-interest of the present plaintiff. In 1852, the proprietaryright to the estate became vested in J.W. Laidley and James Darlymple, two ofthe partners of the firm of Robert Watson & Co., and by an indenture oflease, dated 5th November 1866, these two persons leased out in permanent putniright their proprietary right in Touzi N0.893 as well as in the permanentlysettled lands of Taraf Nakra of Pargana Goas appertaining to eight annas shareof Touzi No. 523 of the Murshidabad Collectorate, to Robert Watson & Co.,at a fixed consolidated rental of Rs. 5483-5-1 a year. There was a clause inthe putni patta by which the lessors purported to convey to the lessee theirrights to have periodical settlement of the temporarily settled estate asproprietors. On the basis of this clause, it appears, proprietary settlementsof Touzi No. 893 were made with Robert Watson & Co. and then with theirsuccessor-in-interest, the present plaintiff, from time to time, and this stateof things continued till 1920.

2. In 1920, a fresh revenue settlement was made which cameinto operation with effect from 1st April 1921, and during these settlementoperations it was detected that the Midnapur Zamindari Co., was merely atenure-holder and not a proprietor of Touzi NO. 893, and the clause in thepatta on the strength of which proprietary settlements were made with them wasin no sense binding on the Government. The result was that in the settlementrecords of 1920, which recorded the rents of all classes of tenants, Raja BijoySingh Dudhuria and others, who are represented by defendants 2 to 5 in thissuit, were recorded as proprietors of the said touzi and the Midnapur ZamindariCo. was described as a tenure-holder under them. The proprietors howeverrefused to take settlement of Touzi No. 893 which was kept under the directmanagement of the Government for some time and then a farming settlement wasconcluded with the Midnapur Zamindari Co. which lasted till 1936. In 1923 theplaintiff Company filed a suit for establishment of their proprietary right toTouzi No. 893. That suit was dismissed by the trial Court and also by the HighCourt on appeal. An appeal was then taken by the company to the Privy Council,but that appeal was eventually withdrawn. In 1937 fresh survey and settlementproceedings began under Part II, Chap. 10, Ben. Ten. Act, and the SettlementOfficer assessed a rent of Rs. 13,379-10-0 under Section 104, Ben. Ten. Act, inrespect of the putni held by the plaintiff company under Touzi No. 893. Beingaggrieved by this assessment, the plaintiff company took an appeal to theDirector of Land Records and contended inter alia that the putni, being creatednot only in respect of the lands of Touzi NO. 893 but of the permanentlysettled lands of Touzi No. 523 as well, at a fixed consolidated rent, the rentfixed by the contract was binding both on the zamindars and the revenue officerand the latter had no jurisdiction to settle the rent of the putni ignoring thesaid contract. The appeal was dismissed by the Director of Land Records on 15thJuly 1938. Eventually, the Dudhuria zamindars did not accept the new periodicalsettlement this time either, and the Government took over khas management of thetouzi under its powers under Regn. 7 of 1822. The plaintiff filed the presentsuit on 11th January 1939, making the Province of Bengal and the Dudhuriazamindars parties defendants and praying for declaration that the rent-rollmade by the revenue officer in contravention of the contract embodied in theputni lease which was prior to the Bengal Tenancy Act, was unauthorized,illegal and ultra vires and that the plaintiff company was not liable to pay asputnidar the assessed rent of Rs. 13,379-10-0 a year.

3. The suit was contested primarily by the Province ofBengal. The Dudhuria defendants filed a written statement supporting theProvince of Bengal but did not take any active part in the proceeding. Onbehalf of the Province of Bengal a large number of defences were taken. It wascontended inter alia that the lands of Touzi No. 893 were not covered by theputni patta of 1866, that the proprietor of a temporarily settled estate wasnot competent to create a perpetual tenure, and that as in previous settlementproceedings rents of all classes of tenants were enhanced and the plaintiffcompany who took settlement did not challenge the legality of the proceedings,it was not competent to raise any objection now. It was also averred that thecontract, if any, fixing in perpetuity the rent of the lands of temporarilysettled estate No. 893 was not binding on the revenue officer or on theProvince of Bengal, that the suit was barred by res judicata and also underSection 104H Clause 3, Ben. Ten. Act, and that the notice under Section 80,Civil P. C., not being a proper or legal notice, the suit was premature andbound to be dismissed on that ground alone. The trial Judge who heard the suitoverruled these defences and held inter alia that as the putni lease created bythe proprietors in favour of the plaintiff company was anterior to the passingof the Bengal Tenancy Act and the contract was subsisting at the date of thesettlement, the settlement authorities had no jurisdiction in view of Section191, Ben. Ten. Act, to ignore the terms of the lease and fix rents in violationof the same. Thus the putni rent that was assessed under Section 104, Ben. Ten.Act, was illegal and without jurisdiction and was not binding on the plaintiff.The result was that the plaintiffs suit was decreed. It is against thisjudgment that the Province of Bengal has come up on appeal to this Court.

4. Dr. Basak appearing on behalf of the appellant stated atthe outset that he would not dispute the finding of the trial Court that thelands of Touzi NO. 893 were covered by the putni patta of 1866. He concededfurther that a proprietor of a temporarily settled estate is competent tocreate a permanent tenure at a fixed rate of rent, though such tenure could notbe described as a putni tenure in the strict sense of the term. The decision ofthe Court below on the questions of res judicata and estoppel has not beenchallenged before us and Dr. Basak has confined himself to two points only insupport of the appeal. He has contended in the first place that as the suit wascommenced by the plaintiff before the expiry of the period of two months nextafter notice was served on the Province of Bengal under Section 80, Civil P.C., it was premature and was liable to be dismissed on that ground. The otherground put forward is that as in the present case the periodical revenuesettlement of Touzi No. 893 was not accepted by the proprietors and theGovernment has taken khas management under the provision of Regn. 7 of 1822,the stipulation in the putni lease is not binding on the Government, which isin no sense an agent of or successor to the proprietors and consequently therevenue officer had ample jurisdiction to ignore the contract between thezamindar and the putnidar and settle rent in such way as he considered proper.We will consider these two points one after another.

5. So far as the first point is concerned, it appears thatnotice under Section 80, Civil P. C., was served on the Collector of Nadia on11th November 1938 and the plaint was filed on 11th January 1939. If incalculating the period of two months under Section 80, Civil P. C., the date onwhich the notice was served is to be excluded, the suit is admittedly prematureand has been brought a day too soon; if on the other hand the date of serviceis to be included in the computation, the suit was quite in time. The learned.Subordinate Judge is of opinion that the period of two months is to be reckonedinclusive of the date of notice and consequently the suit was not premature.The learned advocates on both sides have referred us to a number of Englishcases on the point, though these decisions cannot be said to be by any meansuniform.

6. The authority which directly supports the contention ofthe plaintiff is the pronouncement of the English Court in Castle v. Burditt(1790) 3 T. R. 623 which was decided in 1790 A. D. There an action of trespasswas brought against some excise officers who were alleged to have wrongfullyseized certain goods of the plaintiff, purporting to act under the provision of23 Geo. III, ch. 70. It was necessary under the statute that one calendarmonths notice should be given before an action was brought. The notice wasgiven on 28th April and the writ was sued out on 28th of the following month.The Court held on the authority of Rex v. Adderley (1780) 2 Doug. 463 that thenotice was sufficient, the day on which the notice was served being reckoned asincluded in the period of one month for which notice was required. In Rex v.Adderley (1780) 2 Doug. 463, it should be noted, the question was whether theday on which the Sheriffs office expired should be included in the six monthsafter which he could not be called upon to return processes under theprovisions of the Statute 20 Geo. II, C. 37, and it was held that it should beincluded, for the statute was made for the case of Sheriffs. In Glassington v.Rawlins (1803) 3 East 407 which was decided in 1803 the Court held that the dayon which a bankrupt was sent to prison should be included in counting theperiod of two months for which it is necessary that he should remain in prisonfor completing the act of bankruptcy. All these cases were referred to by SirWilliam Grant in Lester v. Garland (1808) 15 Ves. Jun. 248. In that case, thetestator had bequeathed the residue of his estate upon trust, providing that incase his sister should, within six months next after the testators death, givesecurity not to marry a certain person, it would be paid to her, otherwise itwould go to her children. The testator died on 12th January 1805, and thesecurity was given by his sister on 12th July following. It was held that thesecurity was valid and the six months were to be taken exclusive of the day ofthe testators death. It is quite true that Sir William Grant made it clear inhis judgment that it was not necessary to lay down a general rule on the pointas to whether in computing time from an act or event the day of the act is tobe excluded or included; but at the same time the Master of the Rolls observedthat it would be more convenient to hold that the day of an act done or eventhappening should be excluded than that it should be included. "Ourlaw", so runs the judgment,

rejects fractions of a day more generally than the civil lawdoes. The effect is to render the day a sort of indivisible point so that anyact done in the compass of it is no more referable to any one than to any otherportion of it; but the act and the day are co-extensive and the act cannotproperly be said to have passed until the day is passed.

7. The cases in Rex v. Adderley (1780) 2 Doug. 463 andGlassington v. Rawlins (1803) 3 East 407 were undoubtedly decided on their ownpeculiar facts. The first of these decisions laid stress on the policy of theparticular statute which was held to have been enacted for the case ofSheriffs, while the other put a strict interpretation on the penal provisionsof bankruptcy law and held that in counting the period of two monthsimprisonment the day on which the debtor was sent to prison should be included.The decision in Castle v. Burditt (1790) 3 T. R. 623 indeed rested on noparticular facts of its own. But it proceeded entirely upon the earlierdecision in Rex v. Adderley (1780) 2 Doug. 463 without any discussion of theprinciple involved in such cases. Since the decision in Lester v. Garland(1808) 15 Ves. Jun. 248 the trend of authorities in England has been to holdthat when time for a particular period is allowed to a party to do an act, thefirst day is to be reckoned exclusively. Many of these cases were referred toby B. Parke in Young v. Higgon (1840) 6 M. & W. 49. In this case, an actionwas brought by the plaintiff against a Magistrate for issuing an illegalwarrant under which his goods were seized and sold. Under Statute 24 Geo. II,C. 44, Section 1, it was necessary to serve one calendar months notice on theMagistrate before the action was brought. The notice was served on 26th March1838 and the writ was sued out on 26th April following. It was held that theaction was brought too soon and should be dismissed. Alderson B., who delivereda separate judgment agreeing with B. Parke, observed as follows:

Here is a case in which one party is required to give noticeto another a certain time before a particular act can be done by the former;the party to whom the notice is given cannot fix the period of the day when itis to be given, but the Act of Parliament gives him one month as an interveningperiod within which he may deliberate whether he will do a certain act, namely,tender amends; and unless you exclude both the first and the last day, you donot give him a whole month for that purpose.

8. Amongst other cases applying the same principle referencemay be made to Blunt v. Heslop (1838) 8 A. & E. 577 and Browne v. Black(1912) 1 K. B. 316. The law is thus summed up in Halsburys Laws of England,2nd Edn., Vol. 32, p. 140:

When a period is fixed before the expiration of which an actmay not be done, the person for whose benefit the delay is prescribed, has thebenefit of the entire period and accordingly in computing it, the day fromwhich it runs as well as the day on which it expires must be excluded.

9. We agree with Mr. Gupta that none of the cases quotedabove can be regarded as direct authority in the matter of interpreting theprovision of Section 80, Civil P. C. Whether the day on which notice is servedunder Section 80, Civil P. C., is to be included or excluded for the purpose ofcomputing the period of two months before the expiry of which no suit could bebrought, as contemplated by the section, must have to be determined on thewording of the section itself and the obvious purpose which the Legislature hadin view in enacting it. Section 80 lays down that no suit shall be institutedagainst the Crown or against a public officer in respect of any act purportingto be done by such public officer in his official capacity, until theexpiration of two months next after notice in writing has been served in theparticular prescribed way on the Crown or the officer concerned. The object ofthe Legislature in requiring the notice is undoubtedly to afford the Crown orthe public officer, as the case may be, an opportunity to reconsider theposition and make amends or settle the claim if so advised. The defendant isallowed two months time for deliberation and the suit cannot be brought untilthe expiry of two months next after notice has been served in the way indicatedin the section. The word "next" means "immediately following orsucceeding." Thus, the period of time is to commence immediately afternotice is delivered to or left at the office of the defendant. The notice hasto be served at some hour of the day, be it early or late. If the intention ofthe Legislature is that the defendant should have full two months time for thepurpose of deliberating and deciding the steps that he might be advised totake, it is clear that he cannot have full two months time if the hours of theday that remain after receipt of notice are not excluded for purposes ofcomputation. If that day is to be included, he necessarily gets less than twomonths. A day should ordinarily be taken to mean the whole day and not afraction of a day, and, in these circumstances, we think that the period of twomonths, as laid down in Section 80, Civil P. C., should be taken as exclusiveof the day on which the notice is served. In this view the suit in the presentcase must be deemed to have been brought a day too soon. The terms of Section80, Civil P. C., as has been held by the Judicial Committee vide Bhag Chand v.Secretary of State are imperative and admit of no exceptionor implication, and non-compliance with its provisions is fatal to theplaintiffs suit.

10. Mr. Gupta has argued that the Government was not anecessary party to a suit of this description, and referred to Section 104H(3),Ben. Ten. Act, which says that no suit shall be brought against the Crownunless the Crown is landlord or tenant. But here admittedly the Crown has takenpossession of the touzi in consequence of the proprietors refusing to takesettlement of the same. Whether the Province of Bengal holds it on behalf ofthe proprietors, or in its own capacity as sovereign, might be considered lateron. But it cannot be denied that the rent in respect of the putni held by theplaintiff is now payable to the Province of Bengal who occupies the position ofa landlord with regard to all subordinate interests under the touzi. A decreeagainst the Dudhurias alone, who have not taken settlement of the touzi forthis period, will not be of any benefit to the plaintiff nor would such adecree bind the Province of Bengal if it is dismissed out of this suit. In ouropinion, therefore, the suit should be regarded as premature and unsustainablein limine for non-compliance with the provision of Section 80, Civil P. C.

11. In view of our decision on this point, a discussion ofthe other point raised by Dr. Basak is, strictly speaking, not necessary. Butas the point has been fully argued and there is a chance of the case going upto a higher tribunal, it is our duty to record our decision on all pointsraised in this appeal. Dr. Basaks contention in substance is that though by acontract made before the passing of the Bengal Tenancy Act between thepredecessors of defendants 2 to 5 and the plaintiff company, the rent of theputni tenure held by the plaintiff was fixed for ever, that contract might andwould have been binding only if defendants 2 to 5 had taken settlement of thetouzi for the present period of temporary settlement. As however the proprietorshave refused settlement and the estate is under khas management of theGovernment by virtue of its powers under Regulation 7 of 1822 and as theGovernment is in no sense a successor to or representative of the proprietorsthe stipulation in the lease regarding the fixity of rent is not binding on theGovernment or on the settlement officer and the latter could settle the rentsof all classes of tenants as he deemed proper irrespective of the terms of theputni patta. The point is not free from doubt as we shall presently explain,though it has come up for consideration in some form or other in quite a largenumber of cases before this Court. It is a matter of frequent occurrence inBengal that, before any revenue settlement is made in respect of alluvialaccretions to a permanently settled estate, the proprietor has granted apermanent mukurrari lease of all lands in his possession including the dearalands of which he is undoubtedly the proprietor but with regard to which theGovernment has the right to assess fresh revenue. When the deara lands areresumed, the Government for revenue purposes can follow one or other of thecourses open to it under Act 31 of 1858, and it can, as it has done in thepresent case, keep the accreted lands as a separate temporarily settled estateand make periodical settlements from time to time. As the proprietor of theparent estate is in law the proprietor of the accretions also, he hasundoubtedly the first right to take settlement. But in case he refuses toaccept, the Government has the right of making farming settlement or even aproprietary settlement with other persons, or it can keep the estate under itskhas management; and in either case the recusant proprietor is entitled to anallowance which is called malikana.

12. In all districts to which the Bengal Tenancy Act isapplicable, the operations for assessment or revision of land revenue in regardto non-permanently settled estates, are preceded by operations under Ch. 10,part 2, Bengal Tenancy Act, and the revenue officer has got to settle the rentspayable by all classes of tenants within the temporarily settled estate and toprepare a rent-roll in respect of the same. The rental assets of the touzibeing thus determined, the assessment of land revenue is made on the basis ofthe same. The object of the scheme undoubtedly is that it is only fair to thelandlord that the rents payable to him by the subordinate tenants should beauthoritatively settled and capable of being realized through Courts of lawbefore any revenue demand could be made on the basis of the same. And it wouldcertainly be unfair if revenue were to be assessed on a certain percentage ofassumed rental which the landlord might never realise. Section 104A and thesubsequent sections of the Bengal Tenancy Act lay down the procedure that is tobe followed by the revenue officer in the matter of settlement of rents andpreparation of rent roll. It is open to the parties interested to intervene inthe settlement proceedings under Sections 104E and 104G. A person aggrieved bythe decision of a revenue officer may institute a suit in a civil Court on anyof the grounds mentioned in Section 104H(3), Ben. Ten. Act, and subject to allthese provisions the rents settled become conclusive and final and are deemedto be fair and equitable rents under Section 104J, Bengal Tenancy Act.

13. Suppose, as in the case before us, the proprietor ofcertain deara lands had granted a mokurari lease of the same to a tenure-holderfixing the rent perpetually for all time to come. The lands are later on formedinto a temporarily settled estate and suppose that during a particular revenuesettlement of the same the revenue officer in settling rents of all classes oftenants within its boundaries, under Section 104, Ben. Ten. Act, fixes the rentof this tenure at a much higher figure than was reserved by the lease. Is itwithin the competence of the revenue officer to ignore the contract and settlethe rent in violation of its terms, and if he does that what is the remedy of thetenant One of the earliest pronouncements on this point is that of theJudicial Committee in Prianath Das v. Ram Taran (03) 30 Cal. 811, same case asPrianath Das v. Ram Taran (03) 30 Cal. 811; and though it was a case whererents were settled by revenue officers prior to the passing of the BengalTenancy Act under the law as it then stood, the principle underlying thisdecision has been applied to a large number of cases since then where rentshave been settled under the provisions of the Bengal Tenancy Act. In this casea chak forming part of a ganti tenure of which a patta was granted in 1867 bythe zamindar to the defendant at an annual rental of Rs. 2300 was resumed bythe Government and in 1884 was granted on a temporary settlement to the heirs ofthe zamindar. There was a clause in the patta that in case any portion of theland within it was resumed, the tenant would get proportionate abatement ofrent. The plaintiff was a purchaser of the chak from one of the heirs of thezamindar who took settlement of the chak after resumption by the Government. Hesued the defendant for rent not at the rate proportionate to that mentioned inthe patta but on the basis of the rent settled by the revenue authorities underSection 10 of Act 8 of 1879. It was held by their Lordships of the JudicialCommittee that the resumption by Government and settlement of rent by revenueauthorities did not disturb the contractual rights of the parties so long asthe proprietor himself or his successors were the holders of the touzi."The settlement proceedings of 1854," so runs the judgment,

cannot be held to have abrogated the rights of therespondent under the patta so long as Raja Baroda Kanta Roy and his heirs werethemselves in a position to let him have the lands. In fact the resumption byGovernment did not disturb the position either of the Rajas heirs or ofChatterjee... If it had seemed good to the Government to take the land intotheir own khas possession or to settle it on to strangers to the contract withthe respondent Chatterjee, then the recorded rent would have been the rate ofpayment by that respondent.

14. Thus the position was that if the proprietor who hadgranted the lease took settlement of the new touzi, the contractual rightsprevailed but not otherwise. As said already, the rents in this case weresettled under Section 10 of Act 8 of 1879 and no such provision as that ofSection 191 of the present Bengal Tenancy Act was in existence at that time.Section 191, Bengal Tenancy Act, as it stands after the amendment of 1928, isan amalgamation of Sections 191 and 192 of the old Act and it provides interalia that in case of lands situated in an estate not subject to permanentsettlement when an assessment or revision of land revenue is made it would beopen to the revenue officer notwithstanding anything in the contract betweenthe parties entered into after the passing of the Bengal Tenancy Act to fix afair and equitable rent for all grades of tenants in accordance with theprinciples laid down in the various sections of the Act. After the passing ofthe Bengal Tenancy Act, the trend of decisions in this Court was to the effectthat Section 192 of the Act (which now forms a part of Section 191) did notempower the revenue officer to fix a rent so as to affect contracts made beforethe passing of the Act. If the settlement officer had fixed rents incontravention of the terms of any such contract, and if the grantor of thelease himself became the holder of the estate, he was not competent to recoverrents in excess of what was reserved by the contract and the tenant could setup his contractual rights by way of defence to a suit instituted by suchlandlord for recovery of rents as settled by the revenue officer. It wasfurther held that in such cases the tenant could take this defence in spite ofthe fact that no suit was brought by him challenging the entry of rent in thesettlement rent roll, under Section 104H, Ben. Ten. Act. There are a largenumber of decided authorities on this point and we may refer to some of them byway of illustration. The case in Khirode Kanta v. Akhoy Kumar (17) 4 A. I. R.1917 Cal. 599 is one of the earliest of these cases and it related to theself-same chak which was the subject-matter of litigation in Prianath Das v.Ram Taran (03) 30 Cal. 811. After the period of 20 years settlement of thatchak was over, the Government granted a farming settlement of the chak to theplaintiff Khirode Kanta Roy and others who were not the successors of theoriginal proprietors and rents were settled under Ch. 10, Part 2, Ben. Ten.Act, which had then come into force. The plaintiff sued the defendant forrecovery of the rent fixed by the revenue officer and the claim was allowed, itbeing held that the revenue officer had full jurisdiction to fix a fair andequitable rent. The contention of the defendant that an entry or omission inthe record of rights could not override the contractual rights of the partieswas overruled on the ground that the plaintiffs being strangers were notparties or privies to the original contract and the defendant could not claimany rights under the same. It is to be noticed that in this case the lease wasprior to the Bengal Tenancy Act; yet it was held that the revenue officer wasnot bound to give effect to its terms and the decision obviously proceeded onthe ground that the contract could be enforced only between those who wereparties to it, no matter whatever rent was considered fair and equitable by therevenue officer.

15. In Muktakeshi v. Srinath Das (15) 2 A. I. R. 1915 Cal.284, the plaintiff was proprietor to the extent of two-thirds share of certainalluvial lands which was resumed by the Government in 1903 and settled with theplaintiff alone. Prior to the resumption the plaintiff along with his co-sharershad granted a lease of these lands to the defendant on a fixed rental and thelease was dated 19th February 1884. On a suit by the plaintiff to recover fromthe defendant the rent which was fixed by the settlement authorities it washeld that with regard to two-thirds share the plaintiff was bound by the termsof the contract, that is to say, was entitled to realise rent only at the ratementioned in the lease, while with regard to the remaining one-third share, hewas in the position of a stranger and was hence entitled to recover rent at therate fixed by the settlement authorities. Here also, it will be seen that thecontract was prior to the Bengal Tenancy Act and the learned Judges did not saythat Section 192 of the Act, prevented the settlement authorities from fixingrents in violation of the terms of the contract. In fact with regard to the onethird share the plaintiff was held entitled to recover rent at the rate fixedby the revenue officer and it was only on the ground of privity of contract thathe was deemed incapable of doing so with regard to the two-third share.

16. The case in Profulla Nath v. Tweedie (22) 9is the next case of importance to which reference may benecessary. Here the predecessor of the plaintiff had settled certain asli landstogether with some lands which were later on found to be deara to the defendantat a fixed rent. The lease was in 1860 long before the Bengal Tenancy Act waspassed. After resumption of the deara lands a temporary revenue settlement wasmade of the same and the plaintiff himself took settlement. Rent was settled inrespect of the defendants tenure under Section 104, Ben. Ten. Act, and theplaintiff instituted a suit for recovery of the rent thus fixed by the revenueofficer. It was held that the plaintiff was bound by the contract and thatunder Section 192, Ben. Ten. Act, the revenue officer was not authorised to fixa rent which affected the contract entered into before the passing of theBengal Tenancy Act. Another important point was touched in the judgment ofChatterjea J., namely, whether this question of contractual rights could beraised after the settlement of rent became final under Section 104J, Ben. Ten.Act. Opinion was expressed that under Section 104J, Ben. Ten. Act, only theentry relating to rent settled was final and not the entries relating to othermatters which apparently were taken to include contractual rights of thisdescription. The last proposition was elaborately discussed and reiterated by aDivision Bench of this Court in Sarada Prosad v. Prafulla Chandra: AIR1938Cal188 . In this case, after rents were settled inrespect of a tenancy under Section 104, Ben. Ten. Act, the tenant did not movethe revenue officer under Section 104E or Section 104G or the civil Court underSection 104H. There were a patta and a kabuliyat between the landlord and thetenant prior to the passing of the Bengal Tenancy Act in which there was astipulation that subject to certain contingencies regarding increase of revenueby Government the rate of rent was to remain unaltered. It was held that inspite of the fact that the records became final under Section 104J the landlordwas not entitled to recover rent beyond the stipulation in the patta and thekabuliyat. The learned Judges it appears, accepted the contention of theappellant that the recording of contractual rights under the kabuliyat was notan entry relating to rent to which alone irrebuttable presumption attachedunder Section 104J, Ben. Ten. Act, in other words, the kabuliyat rent might notbe fair and equitable rent as contemplated in Part 2, Chap. 10, Ben. Ten. Act,and under such circumstances the revenue officer was to fix the rent that heconsidered proper and mention the kabuliyat rent as only a special incidence ofthe tenure which would be enforcible only in the special circumstances if thegrantor of the lease happened to accept revenue settlement for the particularperiod.

17. The very same view was taken by Nasim Ali and HendersonJJ. in Midnapur Zamindary Co. v. Chandra Singh Dudhuria :AIR1939Cal1 . This case arose out of two rent suits filed by the Dudhuriazamindars against the Midnapur Zamindary Co. for recovery of arrears of rentfor two successive periods in respect of a putni which was created in favour ofthe Zamindary Company by the same document of 1866 to which the putni in thepresent suit owes its origin. These lands also being alluvial lands were formedinto a separate non-permanently settled touzi and rents of all classes oftenants were settled under Part 2, Chap. 10, Ben. Ten. Act. The estate wastemporarily settled with the Dudhuria Zamindars and they instituted the rentsuits for recovery of rent as fixed by the settlement authorities. The defencewas that as the lands were covered by the putni lease of 1866 which fixed aconsolidated rental in respect of all lands included in it, the contract wasbinding between the parties and the defendant was not bound to pay anyadditional rent. It appears that in this case also the rent fixed by therevenue officer had become final under Section 104J, Ben. Ten. Act, and thedefendant did not bring a suit challenging the entry under Section 104H of theAct. The learned Judges of this Court held---and the decision was quite inagreement with existing authorities--that only the entry relating to the amountof rent fixed by the revenue officer became final under Section 104J, Ben. Ten.Act. The question whether the tenant was liable to pay the rent thus fixed, byreason of a previous contract between him and a holder of the estate, was not amatter for determination by the revenue officer who has no power to touchcontractual rights acquired before the Act. A suit under Section 104H, Ben.Ten. Act, would be necessary if the tenant had any grievance in respect of theamount of rent fixed by the revenue officer. But, if in spite of the rent fixedbeing fair and equitable, he asserted that the landlord had no right to realisethat rent by reason of the terms of a previous contract, no suit under Section104H, Ben. Ten. Act, was necessary and so far as that question was concerned,no conclusiveness attached to the entry of rent under Section 104J, Ben. Ten.Act. The result was that the rent suits were dismissed. Against this decision therewas an appeal taken to the Judicial Committee by the landlords plaintiffs andthe appeal was allowed by their Lordships of the Judicial Committee and thejudgment of this Court was set aside: vide Chandra Singh Dudhuria v. MidnapurZamindary Company (42) 29 . It is necessary to examine thejudgment of their Lordships, carefully as it has definitely overruled the viewtaken by a long series of decisions of this Court. The material portion of thejudgment bearing on this point runs as follows:

The view of the learned Judges of the High Court appears tohave been that Sections 104A to 104J dealt only with the amount of rent and didnot authorise the settlement officer to deal with the question of liability,and, therefore, that the question of liability for rent was only affected bythe presumption of correctness given to entries in the record of rights bySection 103B of the Act. In particular they held that the settlement officer,in settling the rent, was not entitled to touch contractual rights. TheirLordships are unable to agree; in their view, either the settlement officer wasmerely fixing a fair and equitable rent in the ideal sense, regardless of theexisting contractual rights, or it was his duty to consider and form a decisionbased on such contractual rights. A perusal of the grounds of appeal specifiedin Section 104H affords complete conviction that the entry of rent settled inthe Settlement Rent-roll prepared under Sections 104A to 104F included adecision as to liability to the payment of rent, and it will be remembered thatrent is defined in Section 3(13) as whatever is lawfully payable ordeliverable in money or kind. Their Lordships agree with the learned Judges ofthe High Court that the settlement officer is not entitled to disregard or toalter contractual rights,--but, differing from the learned Judges--they holdthat the officer is bound to regard them and to give effect to his view ofthem. It follows that the defence now stated by the respondents would properlyhave formed the subject of a civil suit instituted under Section 104H withinthe period thereby prescribed." (Chandra Singh Dudhuria v. MidnapurZamindary Company (42) 29 .)

18. The propositions of law enunciated by their Lordshipsmay be summarised as follows: (1) It is not correct to say that the settlementofficer acting under Sections 104 to 104J, Ben. Ten. Act, can deal only withthe amount of rent and not with the question of liability to pay rent and thatentry in the final rent roll cannot touch contractual rights; (2) in settlingrent under Section 104, Ben. Ten. Act, the revenue officer has got to fix rentnot in an ideal sense regardless of contractual rights but it is his duty toconsider and form a decision based on such contractual rights; (3) the tenantif he wants to dispute his liability to pay the rent as fixed by the revenueofficer has got to bring a suit under Section 104H in respect of the entry ofrent against the landlord, within the time allowed by law and if he omits to dothat, the rent must be deemed to be correctly settled and, it would not be opento the tenant to set up his contractual rights in a suit brought by thelandlord for recovery of the settled rent; (4) the revenue officer is not onlynot competent to disregard or alter contractual rights, but on the other handis bound to regard them and give effect to his view of them.

19. The last proposition was undoubtedly laid down withreference to the facts of the case actually before their Lordships. In thiscase the contract was prior to the passing of the Bengal Tenancy Act. UnderSection 191 of the Act the revenue officer in fixing rent is quite competent todisregard contractual obligations created subsequent to the passing of the Act,though undoubtedly he has got to consider an existing contract as a valuablepiece of evidence in connexion with the determination of fair and equitablerent. It cannot be imagined that their Lordships overruled the provision ofSection 191, Ben. Ten. Act; on the other hand, it seems probable that areference to that section was considered unnecessary as in the case beforetheir Lordships the contract was one to which Section 191, Ben. Ten. Act, wasnot attracted. But still another difficulty remains. In the case before the JudicialCommittee, the Dudhuria who had taken settlement of the touzi were themselvesthe grantors of the putni tenure. But what would be the position if thesettlement was made with a stranger The difficulty is considerably enhanced byreason of this fact that usually settlement of land revenue is made after therecord of rights are completed under Part II, Chap. 10, Ben. Ten. Act, and therecords have become final under Section 104J of that Act. It cannot be known tothe tenant till after the settlement had become, final whether the proprietorwho had granted him a lease would accept the settlement or there would be asettlement with a stranger or the Government itself would keep the estate underkhas management. Their Lordships have expressly held that the revenue officerhad got to determine not merely the amount of rent but the question ofliability as well, based on existing contractual rights. He is not permitted,as was held in earlier cases, to fix a rent which he considers to be fair andequitable, and mention the contractual liability of the tenant as a specialincident of the tenancy which would be attracted only if the contractingparties themselves came to occupy the position of landlord and tenant during aparticular period of settlement. As it may not be known, at least in themajority of cases at the time when the entry of rent in the settlement rollbecame final under Section 104J, Ben. Ten. Act, whether the old proprietor oranybody else would accept settlement and as the remedy of the tenant or theaggrieved party is to institute a suit under Section 104H, Ben. Ten. Act,before the records become final, obviously it is not possible for him at thatstage to proceed on any assumption that the settlement would be with thecontracting party or with some other persons. The rent paid, therefore, must bethe same rent irrespective of the question as to who ultimately takes thesettlement and the revenue officer, as has been said already, must proceed onthe basis of contractual rights.

20. The conclusion thus necessarily follows that except incases where Section 191, Ben. Ten. Act, applies and to which no reference wasmade in the judgment of their Lordships if there is a contract between theproprietor and the tenant which according to the revenue; officer wassubsisting at the time of settlement proceedings and which determines the rentin a particular way, the revenue officer is bound to give effect to his ownviews of the terms of this contract and fix the rent on the basis of the same,and it is immaterial whether the settlement is accepted by the proprietor or bya stranger. This view undoubtedly goes against the trend of previous decisionson this point. It should be noted however that the pronouncement in PrianathDas v. Ram Taran (03) 30 Cal. 811 upon which all the subsequent casespurported to proceed were decided not under the provisions of Bengal TenancyAct but under the law as it stood prior to it. Section 10 of Act 8 of 1879 didnot contain the elaborate provisions that are now laid down in Part 2 Chap. 10,Bengal Tenancy Act, and there were no provisions in the old Act correspondingto those which are to be found now in Sections 104H and 104J, Bengal TenancyAct. Any way we are bound by the decision of the Judicial Committee and interpretingthe judgment as best as we can, no other conclusion seems possible to us.

21. In this view of the case, the second point argued by Dr.Basak is bound to fail. In the case before us, the entry in the rent roll hasnot yet become final under Section 104J and the present suit is one commencedby the plaintiff under Section 104H, Bengal Tenancy Act. The company cantherefore raise the question that the revenue officer ought to have proceededon the basis of the contract which was entered into between the plaintiff andthe previous proprietors long before the passing of the Bengal Tenancy Act. Ithas not been suggested by Dr. Basak that that contract is no longer subsistingor is not binding on the proprietors. No ambiguity in its terms has beenpointed out and it is not contended that the rent reserved by it is enhancibleand not fixed in perpetuity. Dr. Basaks only argument is that as theGovernment has taken khas possession of the touzi, the contractual rights ofthe parties must have ceased to exist. It is perfectly true that the Governmentis in no sense an agent of the Dudhurias though it was so described in thesettlement records, nor it has derived its title from the latter. It has takenpossession in exercise of its own rights under the provisions of Regn. 7 of1882. But the position undoubtedly is that the Province of Bengal occupies theposition of a landlord with regard to all subsisting subordinate tenures underthe estate. The Province of Bengal was certainly not a party to the patni leaseof 1866. But if the settlement officer is bound to give effect to the terms ofthe lease that question becomes immaterial. We do appreciate that theGovernment revenue may suffer if the revenue officer is not given authority tofix the rent as he considers fair and proper, simply because it is in excess ofwhat was fixed by a contract long before the passing of the Bengal Tenancy Act.But that is a matter which Legislature alone can deal with and it is a thing tobe noted that when the Bengal Tenancy Act was amended in 1928, the Legislaturedid not think it proper to arm the revenue officer with authority to overridepre-act contracts between landlords and tenants. The result therefore is thatthe appeal is allowed on the first point only and the decision of the Courtbelow reversed. The plaintiffs suit should be considered premature and theplaint should be rejected on that ground. We direct each party to bear his owncosts in both the Courts.

Thomas Hobart Ellis, J.

22. I agree.

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Province of Bengalvs. Midnapore Zamindari Co. Ltd. and Ors. (06.03.1945 - CALHC)