JUDGMENT
1. These three appeals Nos. 178, 390 and 397 arise out of two connected suits. Appeal No. 178 arises out of Suit No. 2548 of 1916 and Appeals Nos. 390 and 397 arise out of Suit No. 2547 of 1916. The two connected suits were brought to recover possession of a tenure which had been purchased by an auction-purchaser at a rent sale and he claimed to have annulled some incumbrences subsisting in the land, namely a howla and a raiyati interest The First Court dismissed both the suits, but the Second Court decreed the suits. In Appeal $0. 178, there are two sets of appellants, namely, defendant No. 6, the howladar and defendants Nos. 15, 16 and 17 whom I may describe as the holders of a raiyati at a fixed rate subject to that contention urged on their behalf that they do not in fact hold at a fixed rate. Appeal No. 390 is preferred by defendant No. 9, a raiyat and Appeal No. 397 is preferred by the howldar.
2. Four or rather five questions have been urged before us in these appeals. First, it is said that so far as the raiyat are concerned, they hold at fixed rents and have a right of occupancy and they are not encumbrancers, but have protected interests. Secondly it is said that if they are wrong on this first point they are act to be deemed raiyats holding at fixed rates of rents having regard to the terms upon which they hold. It is said that their rents being liable to be increased they cannot be said to be raiyats holding at fixed rate of rents. These two questions, of course, concern only the raiyats and not the howladars;
3. The third question which is raised, affects both the howladars and the raiyats and the contention there under was that the decree in respect of which the purchase was made was not a rent-decree because of certain irregularities which I shall presently mention.
4. Fourthly it is said that these howladars are protected by virtue of the provisions of section 160(b) of the Bengal Tenancy Act, and lastly, although this question has not been pressed, it is urged that inasmuch as the notices were issued by the Deputy Collector they were not valid. As I have said this fifth question was not pressed; I need not dwell on it.
5. So far as the first question is concerned, reliance is placed on a recent decision in the case of Sarbeswar Patra v. Maharaja Sir Bejoy Chand Mahatap 63 Ind. Cas. 986 : 34 C.L.J. 223 : 26 C.W.N. 15 : 49 C. 280 : (1923) A.I.R. (C) 237, as authority for the proposition that a raiyat who holds at a fixed rate and who has occupied his holding for a continuous period of more than twelve years has a protected interest within the meaning of Section 160 of the Bengal Tennacy Act and that his interest cannot be annulled by a notice under Section 167. ,
6. So far as the second question is concerned reliance is placed on the provisions of Exhibit 13, namely, that if in future any enhancement of rent or cesses be made according to law by the superior talukdar or by the Collectorate the landlord would be entitled to realise the enhanced rent and cesses from the tenants there under; and it is said, that by virtue of the provisions of Exhibit 13, the holdings could not be said to be held at a fixed rate of rent.
7. The third point is raised in this way, It is said that a certain minor was not properly represented by a guardian ad litem, and that consequently the decree so far as he is concerned is void with the result that this is not a rent-decree within the Bengal Tenancy Act. What happened is this. Apparently the minor in question’s a son of Kali Charan Chakrabarty, His brother was guardian under the Guardians and Wards Act and the learned Judge quite rightly appointed him a guardian ad litem of the minor and he was duly served, but he never appeared and in fact the decree was ‘passed ex parte. Accordingly it is said that there was no consent by the guardian ad litem to act as such, and reliance is placed on the authorities to which we were referred, that in circumstances of this nature the decree was void as against the minor.
8. Then, so far as the fourth point is concerned, reliance is placed on the fact that these howalas, it is said, were within the Government khas mahal and that in recent Settlement proceedings the rent was settled for a period of ten years, and consequently it is said, that having regard to the entries made in the Settlement khatian, they must be taken to be under-tenures recognised by the Settlement proceedings, within the provisions of Section 160, Sub-section (b) of the Bengal Tenancy Act.
9. So far as the third point is concerned, namely, whether the decree was in fact a rent-decree or not, it does not seem to us that this question was really raised in the first Court. If it had been properly raised it might well have been that evidence would have been forthcoming to show that the brother who is named as gaurdian ad litem of the minor in fact consented to the appointment, and we do not think that in these circumstance, in second appeal, we ought to allow this matter to be gone into as the necessary materials are not before the Court to arrive at a certain conclusion as to whether consent was In fact given or not’.
10. So far as the fourth question is concerned, it seems to us that reliance cannot be placed, under these circumstances, on the entry in the Record of Rights. The sale was in 1911, notices were issued to annul the incumbrances in the yeas 1912, the suit was commenced in 1916 and the Record of Rights was not published until March 1917 in these circumstances it is difficult to see how the entries made in the Record of Rights can affect the rights purporting to have been acquired by virtue of the annulment made by the notices of 1912. This disposes of the appeal so far as the howladars are concerned. In the result the appeal of defendant No. 6 in No. I78 fails and Appeal No. 397 also fails.
11. The first two questions remain which concern the raiyats. So far as the second question is concerned it seems to us that upon the true construction of Exhibit 13, we must hold that the holdings were held at a fixed rate of rent, the provisions for enhancement by the immediate landlord were in respect of enhancements under circumstances over which the immediate landlord has no control; and under these circumstances it seems to us these provisions cannot preclude us upon a true construction of the whole document from holding that these holdings are holdings at a fixed rate of rent.
12. So far as the first question is concerned on behalf of the respondent it is sought to distinguish the case in Sarbeswar Patra v. Maharaja Sir Bejoy Chand Mahatap 63 Ind. Cas. 986 : 34 C.L.J. 233 : 26 C.W.N. 15 : 49 C. 280 : (1922) A.I.R. (C) 237, by saying that the defendants Nos. 15,16 and 17 were not the original tenants and that they bought the rights of defendants Nos. 12, 13 and 14 and that inasmuch as there is no finding that defendants Nos. 15, 16 and 17 have themselves acquired occupancy rights the decision in Sarbeswar Patra v. Maharaja Sir Bejoy Chand Mahatap 63 Ind. Cas. 986 : 34 C.L.J. 233 : 26 C.W.N. 15 : 49 C. 280 : (1922) A.I.R. (C) 237, is distinguishable on this ground. It is also sought to be argued that there is no evidence that defendants Nos. 12, 13 and 14 had themselves occupancy rights but I do not think that this argument is open having regard to the time during which they have been on the land. We think that so far as this first question is concerned the matter has been left in art unsatisfactory position and we accordingly remand Appeal No. 178 so far as defendants Nos. 15, 16 and 17 are concerned and also Appeal No. 390 for a finding as to whether the defendants Nos. 15, 16 and 17 in Appeal No. I78haye acquired a right of occupancy in the land in suit, as also defendant No. 9 in Appeal No. 390 whose case stands on the same footing and it will be for the Court to consider this point in the light of the decision in Sarbeswar Patra v. Maharaja Sir Bejoy Chand Mahatap 63 Ind. Cas. 986 : 34 C.L.J. 233 : 26 C.W.N. 15 : 49 C. 280 : (1922) A.I.R. (C) 237.
13. We accordingly remand the cases, that it Appeals Nos. 178 and 390, to the first Court for these points to be determined by the Munsif. The judgment of the Court below, so far this point is concerned, is set aside and the cases are sent back to the First Court for a decision after determination of this point. If the learned Munsif thinks it necessary that fresh evidence should be adduced he will be at liberty to allow the parties to do so. The costs of these appeal will abide the decision of the Munsif.
14. Appeal No. 397 of 1920 is dismissed with costs.