JUDGMENT

1. This appeal has already come before us on a previous occasion. It was heard by us on the 5th June 1906; and in my judgment of the 8th June 1906 the facts of the case are set forth. It is therefore unnecessary to recapitulate them. I held in my judgment above referred to that the proceedings of the Settlement Officer of 1891 had the effect of res judicata, and that therefore the appeal must be decreed. An application for review of judgment was granted by us on the 19th June 1906; and we have now to hear the appeal de novo.

2. I think, however, that there is no reason to differ from the conclusion at which I arrived on the previous occasion. It may be that the Settlement Officer's proceedings had not the effect of res judicata, but they undoubtedly were evidence in the case. Under the provisions of sec. 107 of the old Chap. X of the Bengal Tenancy Act the decision of the Settlement Officer had the effect of a decree. Therefore it is evidence in this case; and according to that decree it is clear that the rent of the Defendant was properly raised to Rs. 1,000/- odd per annum.

3. Then, there is the further evidence in this case which the learned District Judge has excluded from his consideration, namely, that by the Road-cess return, Ex. (1), dated the 4th August, Agrahan 1302, which was filed by the agent of the Defendant, the rent payable by the Defendant to the Plaintiff was set down at the very sum at which the Plaintiff now claims arrears. All this evidence the District Judge has excluded. He has done so on the ground that by sec. 192, cl. (b) of the Bengal Tenancy Act the Revenue Officer was not entitled to interfere between landlord and tenant and settle the rent of all classes, unless asked by one or other to do so. Now, the Settlement Officer in his judgment states that the proceeding before him was a suit under sec. 104, sub-sec. (2) of the Bengal Tenancy Act of 1885 for the settlement of fair and equitable rent for tenants of all classes in the Government Estate Chur Madhupura, No. 5215. He proceeds to point out that there are four classes of tenants, namely, howldars, nim-howldars, jotedars, and koti-jotedars. The Defendant belongs to the class of nim-howldars. It is therefore evident that the Settlement Officer in his settlement proceeding revised the rent of all classes of tenants and the rent of the Defendant as well as the rent of the Plaintiff. The learned District Judge seems to think that he had no jurisdiction to do so. But I consider that he must have had jurisdiction and that his proceeding must be held to be legal until proved illegal. So far as I see there is nothing to prove that it was illegal. In the first place there was an application by the Government, as the owner of the khas mehal for settlement of fair rent under sec. 104 (2); and I think it must be held either that this gave jurisdiction to the Settlement Officer to settle the rent of the Defendant, or else that the Plaintiff and all the other tenant landlords must have similarly applied for settlement of their rents. It would be manifestly unfair that the rent of the present Plaintiff should be raised at the settlement proceedings and that the rents of his tenants should not be raised so as to enable him to pay the enchanced rent payable by him to Government.

4. The pleader for the Respondents contends that this is a second appeal and that therefore we are bound by the finding of fact arrived at by the District Judge, who has himself settled the rent and found the rent payable by the Defendant to the Plaintiff to be Rs. 850. But it appears to me that there are errors of law in the judgment of the District Judge, seeing that he has excluded the settlement proceedings which for the reasons already given I think he should have admitted. Secondly, the District Judge has disregarded the evidence of the Road-cess return filed by the Defendant. On these two legal grounds, I think we are entitled to interfere with the judgment of the District Jud