Judgement

Appeal by special leave from a judgment and fourteen decrees of the High Court (February 4, 1910) reversing decrees of the District Judge of Nadia.

The question for determination was whether the High Court, in allowing an appeal under s. 109A, sub-s. 3. of the Bengal Tenancy Act, 1885, had acted without jurisdiction in that it had decided the appeal upon a ground not open for it to consider.

The material facts and the terms of the relevant statutory pro visions appear from the judgment of their Lordships.

1918. April 19. Dunne K.C. for the appellant. The only ground of the decision, namely that the finding of the District Judge as to the standard of measurement applicable was wrong. was a question of fact. The right of appeal under s. 109A, sub-s. 3, of the Bengal Tenancy Act, 1885, was subject to s. 584 of the Code of Civil Procedure, 1882; the High Court, therefore, had no jurisdiction to entertain the appeal upon a question of fact Durga Choudhrain v. Jawahir Singh (( 1890) L. R. 17 I. A. 122.); Ravi Veeraraghavulu v. Bomma Devara. (( 1914) L. R. 41 I. A. 258.)

[Lord Buckmaster. Was the present objection made to the High Court?]

The record does not show whether the point was taken in argument, but the present appellant was entitled to assume that the High Court would not decide upon any ground not within s. 584. In any case, the objection being as to jurisdiction, and being taken by the appellant in his case upon this appeal, he is not precluded from relying upon it.

[MR. AMEER ALI Does not the proviso to s. 109A, sub-s. 3 give the High Court power to settle a new rent?

The proviso applies only when the High Court allows an appeal upon a ground within s. 584 to which the sub-section is expressly made subject.

The respondents did not appear.

June 4. The judgment of their Lordships was delivered by

LORD BUCKMASTER. In this case the respondents have not been represented before their Lordships, who have, therefore, been deprived of the advantage of hearing counsel in support of the judgment of the High Court at Calcutta, which is the subject of this appeal, but, having given careful consideration to all the circumstances, they are unable to discover any sound argument by which that judgment can be supported.

The real question which the appeal involves is whether or no the High Court were at liberty to reverse upon the grounds assigned by them a judgment and fourteen decrees of the District Judge of Nadia, dated March 28, 1907.

The case arises under the following circumstances The plaintiff, who is the present appellant, is the zamindar of eight villages, and on February 25, 1902, the Government of Bengal ordered a survey to be made covering these villages and a record of rights to be prepared under s. 101 of the Bengal Tenancy Act, 1885. The survey was accordingly made and the record of rights was duly published, but the appellant was dissatisfied with certain of the decisions of the Revenue Officer, and on March 9, 1904, instituted 290 suits for determination of the matters in dispute between himself and his tenants, and at the same time a number of applications were made both by the appellant and certain of the tenants for the settlement of rents, in respect of the lands. The lands to which this dispute related were of two classes—jamai lands, in which the tenant had permanent rights, and utbandi lands, in which their rights were not permanent. It was alleged that the record of rights had not properly apportioned the lands between these two headings, and this was one of the questions that arose for determination, while others related to the means by which excess lands held by the tenants were to be assessed under s. 52 of the Act.

The main feature of the dispute, however, related to the standard to be used in measuring the lands. The agreed unit was a rashi or chain, the appellant claiming that its length should be 14,040 inches, while the tenants claimed that the length should be 15,095 inches, the result of the te