JUDGMENT

Sir Harilal Kania, C.J. - I have read the judgment prepared by Mukherjea J. in this appeal and agree with his conclusion and line of reasoning.

2. As it is conceded that no proceedings under Chapter X, Part II, of the Bengal Tenancy Act were taken in the matter and also that s. 191 of the Bengal Tenancy Act is inapplicable, as the lands in question are not held as agricultural lands, the only questions which remain for decision by this Court are:

(1) Whether the Collector, overriding the contract between the parties, had authority to fix the rent in respect of the alluvial lands, under Bengal Regulation VII of 1822 read with Bengal Alluvial Lands Settlement Act (Act XXXI of 1858); and

(2) What is the effect of an entry made by the Collector under section 9 of Regulation VII of 1822?

3. As regards the first question, it seems to me that the whole scheme of Regulation VII of 1822 was to ascertain facts, as it was found that the previous settlement of revenue was made on incorrect data. The Regulation was therefore passed to enable the Collector and Revenue authorities to find out the actual rents received by the landlords and when it was hot easy to ascertain the same, to rind 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. Reading 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 of 1822 in Ishur Chandra Sarkar v. Troylukhya Nath (1913) 17 C.W.N. 865 and Jagadindra Nath Boy v. Mohendra Nath Mazumdar (1919) 23 C.W.N. 587 is correct. Act XXXI of 1858 is limited to alluvial lands and in s. 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 alluvial land is found to exist. Section 2 of Act XXXI of 1858 does not expressly enlarge the powers, of the Collector and read as a supplement to Regulation VII of 1822, does not enlarge the powers deemed to exist in the Collector in respect of the alluvial lands. The provisions in Regulation VII of 1822 relating to appeals etc. do not affect the powers of the Collector under s. 9. In Kumar Chandra Singh Dudhoria v. Midnapore Zamindary Co. (1942) 69 I.A. 51, although the newly formed alluvial land was treated as a separate estate under Act XXXI of 1858, the rent of the tenants was fixed under the Bengal Tenancy Act. In my opinion, therefore, when an agreement in respect of rent as between a landlord and tenant exists, the Collector has no power under s. 9 of Regulation VII of 1822 or under s. 2 of Act XXXI of 1868 to fix (i.e., ascertain or determine) any other rent for the lands in question. Those sections define the limits of his jurisdiction and if he does anything beyond those limits, his conclusion is not binding on the landlord or the tenant.

4. On the second question, the entry, which the Collector is authorised to make, as a result of his enquiries, acquires a presumptive value of its correctness provided he has acted within the powers given to him by the Regulation. If however he has chosen to exceed those powers and fixed what he considers reasonable or fair rent (which is not the actual rent the tenant is under a contract to pay), in my opinion, the entry made in the record of rights in the excessive exercise of the Collector's powers has not the probative value given to it by the section. Assuming that an entry in fact is found in the record of rights, at best it has a presumptive value and either party who is aggrieved is entitled to