9911796707
TMI Blog1949 (3) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to enable the Collector and revenue authorities to find out the actual rents received by the landlords and when it was not easy to ascertain the same to find out what was the customary rent in the locality. This appears to have been considered the proper data on which the revenue payable to Government could be more equitably fixed, Beading the Regulation as a whole, I do not think it empowers the Collector, when he finds a certain amount paid actually as rent, to fix either a higher or a lower rent. His duty was merely to ascertain and not to fix any fair or equitable rent, Such construction put on the wording of S. 9 of Regulation VII [7] of 1822 in Ishur Chandra Sarkar v. Troylukhya Nath 17 C.W.N. 865 and Jagindra Nath Roy v. Mohendra Nath Mozumdar A.I.R. (6) 1919 Cal. 321, is correct. Act XXXI [31] of 1858 is limited to alluvial lands and in Section 2 thereof the word determine is used. As those lands came into existence for the first time, there could not be any previous rents in respect thereof. The word determine is, under the circumstances, appropriate to be used, although it does not empower the Collector to fix any other rent if some agreement in respect of such all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit or by the defendant by way of defence, I do not think the words used in the section limit the right to challenge the entry only to the plaintiff. The section does not exclude the right of a defendant by way of defence to contest the accuracy of the entry. The effect of an entry made under Act XXXI [31] of 1858 is not higher. It has the same probative value as an entry made under Regulation VII [7] of 1822. 5. Under the circumstances, in my opinion, it was open to the appellants to challenge the correctness of the entry and its binding nature on them in the suit filed by the respondent to recover rent from them. I find nothing in Regulation VII [7] of 1822 or Act XXXI [31] of 1858 to prevent such defence being raised. It may be noticed that while the accuracy or binding nature of such an entry is contemplated to be contested in a regular suit, unlike provisions found in other Acts in similar circumstances, no provision prescribing a time within which such a suit has to be brought, is found in the Regulation. That supports the view that these objections could be raised by way of defence also. 6. In my opinion, the learned Judges who decided the appeal were in error in disre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions on the demands of the zamindars shall hereafter be regulated by the rates of rent and modes of payment avowed and ascertained at the settlement, and recorded in the Collector's proceedings until distinctly altered by mutual agreement or after full investigation in a regular suit. By virtue of this provision, the record of the Collector must be taken to be prima facie correct, and the Courts of law are bound to act upon it till it is altered or held to be incorrect; but the correctness or propriety of an entry in the record can be challenged by means of a regular suit. That being so, it is open to the appellant in the present case to challenge the correctness of the entry as to rent of the land with which we are concerned in the present suit. I am not prepared to hold that the present suit is not a regular suit, merely because it is a suit for rent. I agree with the view expressed by Mukherjea J., that the expression regular suit as used in Regulation VII [7] of 1822 means a suit which is not to be decided summarily but is to be decided by a competent civil Court according to the procedure applicable to ordinary suits and is a suit in which the rights of the parties ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the settlement of such land is called), District 24-Par-ganas, for the settlement of the new accretion, among other lands similarly formed in the District, and a notification (Ex. II) was issued under the Bengal Alluvion and Diluvion Act (IX [9] of 1847) to all the landlords and tenants having interest in such lands that new alluvial increments were liable to assessment for Government revenue under Section 3, Bengal Regulation, II [2] of 1819 and that the rent of all under tenures in such lands is under Section 2, Bengal Act XXXI [31] of 1858 or under Section 104 of the Bengal Tenancy Act (VIII [8] of 1885) liable to determination. Objections, if any, were to be presented on or before a specified date, but no objection having been raised on behalf of the company, the Diara Officer made his final report on 22nd January 1932 whereby the new accretion was settled with the respondent as a separate estate for a term of 15 years on the basis of the rental assets assessed by him. These included a sum of ₹ 495 per annum determined as the rent payable by the appellant in respect of the land here in question at the rate of ₹ 45 per acre or ₹ 15 per bigha which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well and that its application to this case was not excluded by reason of the patta comprising asli lands also. Therefore, even if the Revenue Officer disregarded the patta, his decision would bind the appellant, as it had not been set aside in a regular suit brought for the purpose. The general effect of their judgment will be found in the following passage: If the tenant's contention be that the patta could not be superseded or touched at all, it was for the tenant to rely on it before the Revenue Officer. Notification Ex. 2 was duly served on the respondents and they had ample opportunity to raise the point. If the respondents were aggrieved by the determination of rent by the Revenue Officer, they had the right to appeal before the Board. They had also the right to raise the question by a regular suit. This they did not do. At one stage of the hearing we thought that it might be possible to stay these proceedings on the respondents now filing a suit to get the decision of the Revenue Officer set aside. Even taking the institution of the suit, out of which the present appeal arises, as the starting point of limitation, more than 6 years have elapsed and any suit contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erning provisions are those of Act XXXI [81] of 1858 which, as its title shows, were passed to make further provision for the settlement of land gained by alluvion in Bengal. By Section 1, the Act provides for the settlement of lands gained by alluvion either by assessing the revenue payable thereon and adding it to the juma of the original estate where the proprietor agrees to such a course, or, if he objects to such an arrangement, by assessing and settling the lands as a separate estate with a separate juma. Section 2 is important and reads as follows: 2. Nothing contained in the preceding section shall affect the rights of any under-tenant in any alluvial land under the provisions of Clause 1, Section 4, Regulation XI, 1825. It shall be the duty of all officers making settlements of such land, whether the land be settled separately or incorporated with the original estate, to ascertain and record all such rights, according to the rules prescribed in Regulation VII, 1922, and to determine whether any and what additional rent shall be payable in respect of the alluvial land by the person or persons entitled to any under-tenure in the original estate. The provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the settlement of revenue was to be made in certain territories which had recently come under the control of the East India Company. It would appear that the Board of Directors were contemplating the introduction of permanent settlement in these territories and for that purpose they required the fullest information regarding the internal conditions of the country, such as the extent of cultivated and cultivable lands, local tenures and usages, rates of rent and the modes of their collection and distribution, etc. (see Field's Introduction to the Bengal Code, para. 42). Accordingly, the Regulation by its title declared one of its objects to be defining, settling and recording the rights and obligations of the various classes and persons possessing an interest in the land or in the rent or produce thereof. This, to my mind, is a clear enough indication that the statute contemplates the settlement of rents either as being the right of the landlord or the obligation of the tenant for they are undoubtedly persons possessing an interest in the land or in the rent or produce thereof. The preamble too states that in revising the existing settlement the efforts of the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of rent and modes of payment avowed and ascertained at the settlement and recorded in the Collector's proceedings until distinctly altered by mutual agreement or after full investigation in a regular suit. Great stress was laid by Mr. Banerjee on the words ascertaining and recording and information collected as supporting the view that the scope of the investigation under Section 9 did not extend beyond finding out and recording things as they existed. Ascertaining or collecting information are not technical or specialised words and I fail to see why they should exclude the idea of determination or settlement of proper rent. In those early days when internal conditions were more or less unsettled, ascertaining, as Mr. Field remarks, too often involved determining what was indeterminate. Nor is the phrase information collected and recorded in any way inconsistent with such information consisting of things settled or determined by the Revenue Officers. On the other hand, the passages quoted above clearly indicate, in my opinion, that such officers were intended to have the power of settling and where necessary, of enhancing rents, though a general and extensiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge in a regular suit. Neither the tenant who in that case would continue to pay the same rent as before, nor the zamindar who was till then content to receive that rent, would think of questioning the correctness of the Settlement Officer's record in such circumstances. On the other hand, would it not be reasonable to infer that this provision was made because the officer was given the power to settle rents, altering them where necessary, and the exercise of such power might give rise to disputes ? These considerations seem to me to afford cogent reasons for rejecting the view that the Settlement Officer acting under S. 9 of Regulation VII [7] of 1822 had power only to find out and record the existing rates of rent. I have already endeavoured to show that expressions used in different places in the regulation are also apt to support the wider construction. 20. Reference was made to the Bengal Rent Acts, such as Act, X [10] of 1859, Act, VIII [8] of 1869, Act III [3] of 1878 and Act, VIII [8] of 1879 as showing that, whenever the Legislature contemplated that revenue officers should have the power of enhancing rents, express provisions were made in that behalf and stringe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons imposed on the power of enhancement of rent by Rules 13, 14 and 17 of Act X [10] of 1858 shall not affect any settlement proceedings under Regulation VII, [7] of 1822. Thus, the later legislative enactments, so far from supporting a restrictive construction as to the scope and extent of the powers of the settlement officer, would seem to accept the position that the officer had the power, under the regulation, of enhancing the rents payable by the tenants. 22. As regards the decisions referred to above, it is interesting to find that in the earlier cases the learned Judges, while holding that the enhanced rate recorded by the settlement officer under Regulation VII [7] of 1822 could not be enforced against the tenant unless he had assented to such enhancement, based their decision not on the lack of power in the officer to settle or enhance rents but on the non observance of the conditions imposed by the later statutes which were held to qualify his powers under the regulation. In J.P. D'Silva v. Raj Coomar Dutt and Ors. 16 W.R. 153, for instance, where the plaintiff sued for rent on the basis of the rate recorded by the settlement officer, the defence was that, no notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssent, which was also the ratio decidendi in the earlier cases. The view of Mullick J., however, was adopted in the subsequent decisions without further examination of the subject until the learned Judges in the present case, reconsidered the point and reviewed the decisions, but in my opinion, went too far in the other direction in holding that the settlement of rent under Regulation VII [7] of 1822 had the same consequence us a settlement under the Bengal Tenancy Act. 23. It was next argued that, even if the settlement officer was authorised to settle additional rents payable by under-tenants in an estate it was only for the purpose of assessing the estate to Government revenue and that such settlement could not create any obligation binding on the tenant to pay the rent. The decision in Dhirendra Ch. Rao and Ors. v. Nawab Khaja Habibullah and Ors. A.I.R. (12) 1925 Cal. 758, to which our attention was drawn, no doubt supports this contention. The facts of that case were more or less similar to those before us, except that the tenancy there in question was agricultural. The claim of the proprietor for rent on the basis of the Diara Officer's determination was rejected on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct XXXI [31] of 1858 was considered ineffectual by itself to fasten liability on the under-tenant, and to have no significance except for the purpose of assessment of revenue. This view overlooks that the provision in Regulation XI [11] of 1825 referred to above did not purport to impose any liability. It is a proviso to the earlier provision in the clause that land gained by alluvion shall be considered an increment to the tenure of the person to whose land it was annexed, and it states that such person shall not be considered exempt from the payment of any increase of rent to which he may be justly liable by his engagements or by established usage. In other words, it merely saves pre-existing liabilities founded on contract, express or implied, or on custom. The repeal of this proviso could not therefore, affect the position as regards the Settlement Officer's determination of additional rent under Section 2 of Act XXXI [31] of 1858. If the under tenure was held under a contract, the officer was to determine whether any or what additional rent was payable under the terms of that contract. Where there was no contract he was to base his determination on customary rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until the same shall have been formally altered or it shall be shown by the result of a full investigation in a regular suit that the proceeding or record of the Collector was erroneous or incomplete. The concluding portion of Clause (1) of S. 9 gives effect to this desire by enacting the provision quoted above as to the demands of the zamindars being regulated by the rates of rent and modes of payment recorded in the Collector's proceedings until distinctly altered by mutual agreement or after full investigation in a regular suit, i. e., a suit not governed by summary proceedings. It was argued by Mr. Chakravarty on behalf of the respondent that this provision meant that the rates of rent recorded by the Settlement Officer must be regarded by Courts adjudicating on zamindar's demands for rent as conclusive where the tenant failed to bring a regular suit for alteration of the Settlement Officer's record, and that, no such suit having admittedly been brought by the appellant company in the present case, the respondent's claim for rent based on the Khatian must be decreed. On the other hand, it was urged by Mr, Banerjee (as an alternative to his extreme contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Collector and other Revenue Officers conducting investigations under S. 9. Nor are the provisions in the Regulation as to the right of challenge in civil suits similar to those in chapter x of part II of the Bengal Tenancy Act. Section 104-H of that Act provides that any person aggrieved by an entry of a rent settled may institute a suit in the civil Court contesting the settlement, and a period of limitation is also provided for such suit. Subject to the result of such suit Section 104-J raises an irrebuttable presumption that the rent was correctly settled, and it is not open to the defendant in a suit for rent to prove the contrary. It was in view of these provisions that the Privy Council held in Kumar Chandra Singh Dudhoria v. The Midnapore Zemindary Co. Ltd. 69 I.A. 51 A.I.R. (29) 1942 P.C. 8 that failure to institute any suit under Section 104-H of the Act within the prescribed period resulted in the disputed entry of rent becoming conclusive. In the Regulation, however, different forms of words are used in providing for a right of challenge in a Civil Court. In regard to particulars recorded under Section 9, the form used, as already indicated, is until disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision of law which entitles the Diara Officer to disregard or override the contractual rights of parties and he cannot any more than a Settlement Officer acting under chap. X part II, Bengal Tenancy Act, (see Kumar Chandra Singh Dudhoria v. The Midnapore Zemindary Co. Ltd. A.I.R. (29) 1942 P.C. 8 settle rents payable by tenants-in such manner as to conflict with existing contracts. It follows that the entry in the Khatian No. 556, on which the respondent's claim in the suit was based must be held to be erroneous. In this view it is unnecessary to deal with the question of levels especially as the suit has not been based on the contract embodied on the patta of 1907. I concur in the order as to costs. Mahajan, J. 29. I agree with the judgment delivered by my brother Mukherji J. As we are differing from the judgment of the High Court and the matter concerns the interpretation of a statute, I would add a few observations of my own. 30. There is no decision of this Court or of their Lordships of the Privy Council on the question that falls for decision in the present appeal. There are, however, earlier decisions of the High Court of Calcutta on the construction of Regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention was given up in this Court, as it could not be supported, the Act admittedly having no application to cases of tenancies of a non-agricultural character. 31. Section 9 of Regulation VII [7] of 1822 deals with the duties of Collectors and other officers exercising powers of Collector on the occasion of making and revising settlement of the land revenue. It is said in this section that it will be their duty to unite with the adjustment of the assessment and the investigation of the extent and produce of the lands, the object of ascertaining and recording the fullest possible information in regard to land tenures, the rights, interests and privileges of the various classes of the agricultural community, and that: For this purpose, their proceedings shall embrace the formation of as accurate a record as possible, of all local usages connected with land tenure, as full as practicable a specification of all persons enjoying the possession and property of the soil, or vested with any heritable or transferable interest in the land or the rents of it, care being taken to distinguish the different modes of possession and property, and the real nature and extent of the interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the other party alleging a different rate. Moreover, even the dictionary meaning of the word settle does not warrant the view that its use simpliciter implies a power to fix fair and equitable rents or a power to enhance them. 32. The section in my view mainly concerns itself with laying down the duties of the Collectors and says that they should collect the fullest possible information in regard to all matters for the purpose of preparing as accurate a record as possible and this was its main purpose. The Collector was not constituted an arbiter of rents and the section does not make his decision conclusive on the point. A power to enhance or abate rents or to fix them on equitable basis has to be conferred specifically or the language employed should be such from which it can be readily inferred. Words employed in the section neither expressly nor implicitly lead to that conclusion. The sentence in the preamble on which stress was laid does not concern landlords and tenants alone. It concern all persons having any interest in land or any privilege in it, and settling their rights only means ascertaining their existing status. After having stated the duties of the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of a civil Court till such ascertainment was found on full investigation in a Court of law to be erroneous. The jurisdiction of civil Court was kept alive and not ousted by the regulation regarding the matters cited in the record of rights. 36. The learned Judges of the High Court were impressed with the arguments which they accepted that the regulation was a self-contained law on the question of determination and settlement of rents; that from the decision of the Collector under Section 9 a right was conferred on the aggrieved party to appeal to the Board of Revenue; that a further right of suit was given to avoid such a decision, and till that was done the decision was final. If the assumption that the ascertainment by the Collector of rents amounted to a decision by him and that the aggrieved party has a right of appeal as well as a right of suit within a time prescribed for such a decision and further that the regulation is an exhaustive code of relations between the landlord and tenant is correct, then no exception can be taken to the view expressed by the High Court. There is however no justification for either of these assumptions. No judicial determination of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zar or farmer, and all complaints preferred by ryats or other under-tenants of whatever description, against landholders or farmers of land-on account of excessive demands or undue exaction of rent whether levied by distraint or otherwise, as well as all suits relative to the adjustment of accounts between landholders and farmers of land or under-tenants of whatever description, and generally complaints of any deviation from the regulation, or from the established usage of the country relative to the matters aforesaid, or any violation of subsisting engagements in disputes respecting the rent and occupancy of land, between landlords or farmers of land, and their under-tenants of whatever denomination. This section empowers the Government to confer jurisdiction on such Collectors as it thinks fit to try summarily disputes that may arise between a landlord and a tenant in regard to rent. It does not concern itself with the correction of entries made in a record of rights under S. 9. It confers no authority on these Collectors to correct those entries. Within S. 9 itself the mode and manner of correcting these entries has been enacted and the procedure of a summary suit under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cannot act in the matter of enhancement of rents unless he is conferred jurisdiction to do so by statute. The summary suits contemplated by Section 20 are of the nature that usually arise between landlords and tenants in the ordinary way in view of their existing contracts or according to customs, usage, etc, and cover cases of illegal exactions raised by the proprietors on the tenants. The concluding portion of Section 20(1) fully supports this view. 41. In expressing the above opinion I am fortified by the trend of later legislation enacted in the various Tenancy Acts in different provinces in India. Whenever it was intended by the Legislature to confer jurisdiction on a Collector or on a revenue authority in the matter of enhancement or abatement of rent, enactment for that purpose was made in express terms. The power was not considered covered under the general powers of preparing record of rights or of ascertaining the existing state of affairs. Reference may be made to Section 52, Bengal Tenancy Act in this connection. It may also be observed that unless jurisdiction of the civil Court is expressly ousted, the decision of a Revenue Officer or a Collector on such matters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or proceedings taken under Sections 105 to 108. From these provisions, it is quite clear that when it is intended by the Legislature to make the decision of a Revenue Officer binding it is necessary to enact specifically and clearly on the point and to lay down a procedure of contesting his decisions. No such thing has been done by Regulation VII [7] of 1822. All that the Regulation did was to make presumptive evidence the entries made in the record of rights prepared in accordance with the provisions of S. 9 of the Regulation, till they were proved incorrect in the course of any regular civil suit. That being the scope of the Regulation, in my opinion, the High Court was in error when it held that on the plain reading of the Regulation uninfluenced by any judicial interpretation it was permissible to conclude that the duty of a Collector under the Regulation was to settle rents and that subject to the right of suit to a civil Court the scheme of the regulation was to make the decision of the Revenue Officer final. 42. It is next convenient to deal with the second branch of the argument accepted by the High Court be the basis of (Act XXXI [3l] of 1858). This Act was enacte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional land recovered by alluvion in cases where no rent had been fixed for that land. The clause presumes that for the additional land recovered by alluvion no rent is already payable by the tenant to the landlord and therefore for this additional land some rent has to be fixed but it does not contemplate cases where either by express agreement between the parties it has been provided that when alluvial land would accrete to a holding no rent will be charged for it or that rent at a particular rate will be payable for that land. The agreement that for the land no rent is payable between landlord and tenant will be binding on them, though for revenue assessment the Revenue Officer may in such a case determine additional rent for the accreted land that has come to a holding by alluvion. The language construed strictly does not include within its scope the question of enhancement or abatement of rents already fixed between the parties and so payable. The draftsman of the section never thought that any one will fix in advance rent for land that was under water and regarding which it was never known whether it will accrete to any particular holding. 44. In my judgment therefore the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant in respect of certain alluvial lands, formed by recession of the river Hooghly and constituting an accretion to an already existing chur. 47. To appreciate the points in controversy in this appeal, it will be necessary to state a few facts. By a registered Potta dated 6th May 1907, Raja Kishorilal Goswami, the predecessor of the plaintiff, granted a permanent mokarari lease to a company known as Colonial Trading Company of Trieste, of two parcels of land abutting on the river Hooghly and situated in village Jugad-dal within the 24 Parganas Collectorate. The first of these plots was high land, measuring 96 bighas and it was settled at a Selami of ₹ 500 per bigha with a fixed annual rental of ₹ 25 per bigha. The second plot was a piece of chur land situated contiguously to the first and it had an area of about 19 bighas. The yearly rental fixed in respect of this plot was ₹ 15 a bigha and the Selami paid was ₹ 300 per bigha. There was a further stipulation in the Potta that if in future any new lands were formed as contiguous accretions to the chur land demised by the Potta, the lessee would be entitled to hold the same free of rent; Provided never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he level of the high lands through natural processes and that the entry in the Settlement Khatian, which ignored the con. tract between the parties was erroneous and could not impose any legal liability on the defendant to pay the rent mentioned therein. 50. After the written statement was filed, the plaintiff applied for and obtained an order for amendment of the plaint by which reference to Ch. 10, Bengal Tenancy Act, as was made in the plaint, was deleted, and it was stated in its-place that the rent had been settled by the Revenue Officer under appropriate regulations and laws. The trial proceeded on the footing that the rent was settled under Regulation VII [7] of 1822 and Section 191, Bengal Tenancy Act, and Mr. Chakravarty, appearing for the plaintiff respondent, stated at the outset that it was not his client's case that there was any proceeding under chap. 10, Bengal Tenancy Act. 51. The Subordinate Judge, who heard the suit, decided it substantially in favour of the plaintiff, and with the exception of the claim for rent for the year 1342 B.S. which was held to be time-barred, the rest of the plaintiff's claim was allowed. It was held by the Subordinate Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by it. The first and the primary question was whether the Revenue Officer had jurisdiction to settle and determine rents payable by the under-tenant to the proprietor, under the provisions of Regulation VII [7] of 1822 read with Section 2 of Act XXXI [31] of 1858 and make such determination binding upon the tenant. The second question was whether in such a case the Settlement Officer could override any already existing contract between the parties. Both the questions were answered by the High Court in favour of the plaintiff. 55. On the first question, the learned Judges were confronted with a large number of decided authorities of their own Court which uniformly took the view that in proceedings under Regulation VII [7] of 1822 the Settlement Officer was only empowered to record the existing rates of rent in the villages and not to settle rents which he considered fair and equitable for the different classes of tenants. The High Court expressed the opinion that this interpretation was not borne out by the plain language of the Regulation and even if the matter was not res integra, these cases were distinguishable on the ground that in none of them the effect of Section 2 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 59. Now Regulation VII [7] of 1822 is a piece of ancient legislation which was brought into existence in the early days of British rule in India. For the purpose of appreciating the scope and object of an old statute like this and for explaining its language which may be susceptible of different meanings, it may be useful to remember the well known historical facts that led to the passing of this enactment. It is a settled canon of construction that the interpreter should place himself as far as possible in the position of those whose words he is interpreting, and the meaning of certain words and terms used in an ancient document or a statute can be properly explained only by reference to the circumstances existing at the time when the statute was enacted or the document was written. Maxwell on Interpretation of Statutes, p. 23 (9th Edn.) 60. The permanent settlement of Bengal was concluded in the year 1793. In 1801, a number of districts were ceded to the East India Company by the King of Oudh in order to enable the company to maintain troops for the protection of the King. Two years later, as a result of Lord Lake's campaign considerable territories in the north-western ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was the desire of the Government that the proceedings held and the records formed by the Collectors should be such that all demands, claims and suits might be adjudged and determined according to the facts stated therein unless they were formally altered or shown to be incorrect after full investigation in a regular suit. 62. To carry out these objects, elaborate pro-visions are made in the different sections of the Regulation. We are not concerned with many of these sections for our present purpose. Section 3 of Regulation VII [7] of 1822 prescribes how settlements are to be made on the expiry of the existing leases. Section 4, upon which some stress was laid on behalf of the respondent, con. templates cases where there are several parties interested in the land and it provides that in such cases if settlement is made with one of them, the interests of the others should be recognised and protected. It has really no bearing on the question before us. Section 9 Clause (1), which is material to the present case lays down the nature and scope of the investigation that is to be made by the Collectors in making and revising settlements. Paragraph 1 of Clause (1),lays a duty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n these matters is final. I do not think that this is the proper view to take on the language of the section. 64. Regulation VII [7] of 1822 is an enactment relating to settlement of land revenue and not to settlement of rent. Unlike the rent Acts of later years, it does not purport to regulate the relations between landlord and tenant and does not lay down the conditions under which rents could be enhanced. The record-of-rights that has got to be prepared under the provisions of this Regulation is solely for the purpose of revenue settlement. Instead of proceeding to an estimated lump sum settlement without a survey and enquiry into details as was done in 1793, it directs a survey and enquiry into the rights in every village and field for the purpose of determining the net rental or produce of the land on the basis of which revenue could be assessed. The different kinds of interests in the lands are recorded with a view to enable the authorities to decide with whom the settlement should be made and it affords protection also to the holders of these interests with whom no revenue engagement is made. The Revenue Officer has undoubtedly to record the rates of rent of each descript ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting under Regulation VII [7] of 1822 would be clear when we look to the subsequent rent legislation in Bengal. In Bengal Act, X [10] of 1859 which was the first attempt to codify the law relating to agricultural tenancies in Bengal, definite provisions were made specifying the grounds upon which alone landlords could claim enhancement of rents paid by the tenants (vide Section 17). Identical provisions are to be found in Bengal Act, VIII [8] of 1869 (vide Section 18) by which the procedure in suits between landlord and tenant was amended and rent suits which were triable by Collectors under Act X [10] of 1859 were made cognisable exclusively by civil Courts. In 1878, an Act was passed (Act III [3] of 1878) which laid down in clear terms that in settlement proceedings under Regulation VII [7] of 1822 no rent shall be re-corded higher than the rent previously payable by the tenants except on some one or more of the grounds specified in Section 17 of Act X [10] of 1859 or Section 18 of Act VIII [8] 1869. It appears that the passing of this Act was necessitated by the fact that the settlement authorities acting under Regulation, VII [7] of 1822 had in some instances erroneously unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not demand rent in contravention of the terms of the contract even though such rent was fixed by the Settlement Officer. The Bengal Rent Settlement Act has been repealed so far as Bengal is concerned by the Bengal Tenancy Act of 1883 and chap. X, Part. II, Bengal Tenancy Act with the modifications introduced since then, now contains the law relating to settlement of fair and equitable rent by revenue officers for all classes of tenants when settlement of land re-venue is being or is about to be made and there is an express provision in this Act under which the revenue authorities can ignore a contract between the parties if the contract was entered into subsequent to the passing of the Act. 66. Mr. Chakravarty argues that the provisions in the Bengal Tenancy Act relating to settlement of fair and equitable rent by revenue officers must certainly be taken to be the law at the present day so far as the agricultural tenancies are concerned, and the provisions of Regulation VII [7] of 1822 must, to that extent be deemed to have been impliedly repealed and substituted by those of the Bengal Tenancy Act. It is said, however, that the Bengal Tenancy Act does not apply to non-agric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by gradual accession whether from the recess of a river or of the sea, it shall be considered an increment to the estate or tenure to which it is attached. The proprietor of the estate, however, can be assessed to additional revenue for the added land and the tenant, to whose tenancy it is an increment, is liable to pay additional rent for it. Act XXXI of 1858 is a small Act of two sections. The first section lays down the two alternative courses open to the revenue authorities while making settlement of the alluvial lands. The revenue assessed on the alluvial lands may be -added to the jumma of the original estate or a new estate may be formed out of the added lands which is to be treated as a separate estate, no matter whether it is settled with the original proprietor or let in farm. Section 2 so far as is material for our present purpose runs as follows: It shall be the duty of all officers making settlements of such land, whether the land be settled separately or incorporated with the original estate to ascertain and record all such rights, according to the rules prescribed in Regulation VII [7] of 1822; and to determine whether any and what additional rent shall be pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other question raised on behalf of the respondent and which relates to the legal effect to be attached to the record of a settlement officer acting under Regulation VII [7] of 1822 even if such record has been erroneously made. Mr. Chakravarty argues that under Regulation VII [7] of 1822 an entry as to rent payable by a tenant even if improper has got a presumptive value and it would be binding on Courts of Law unless it is altered by mutual agreement or by judicial pronouncement in a regular suit. The entry as to rent that has been made in the present case, it is argued, must, therefore, be held binding unless it is set aside in an appropriate manner which the Regulation contemplates. 69. It is true that a presumption of validity attaches to the record of the Collector under the provision of Section 9 of Regulation VII [7] of 1822 and Courts of Law are bound to act upon them till they are altered or held to be incorrect; but this presumption, in my opinion will arise only when the revenue officer purports to record existing rights. If the officer arrogates to himself the authority to determine what the proper rent should be and not merely what it actually is, he would be actin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ored to civil Courts by Act VIII [81 of 1869. There is no doubt in my mind that the rent suit, which has been brought in the Court of the Subordinate Judge in the present case, would answer to the description of a regular suit as given in the regulation, and it seems to me that it is open to the defendant to challenge the validity of the entry relating to rent as settled by the Revenue Officer by way of defence in this suit. The language of Section 9 of Regulation, VII [7] of 1823 does not warrant the conclusion that the party aggrieved by the entry must have to bring a suit as plaintiff and could not challenge the validity of the same by way of defence in a suit instituted against him by the other side in whose favour the entry stands, nor does it prescribe any period of time within which the record must be challenged. There could be no question of limitation in a case like this, as the law of limitation bars a suit and not a defence. 71. The question now is whether the recording of rent by the Settlement Officer in respect of the disputed lands has been a correct one having regard to the contract between the parties which the officer was bound to give effect to if he was autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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