1. This is a second appeal. The appeal is from a judgment of the Subordinate Judge of the Second Court of Arrah, dated the 20th September 1920, modifying a decision of the Additional Munsif of the Second Court of Buxar given on the 8th of September in the previous year.

2. The circumstances which gave rise to the litigation are simple enough but they raise some points of law which are not altogether free from difficulty. The plaintiff and certain other persons were mokararidars of a mouza called Khariacha in Parganna Bhojpur, Touzi No. 1307, in the proprietary interest of the Maharaja of Dumraon. The defendants, according to the Record of Rights, are entered as sarahmoyian tenants, that is to say, tenants at a fixed rental. If this entry is correct it would not be possible for the plaintiffs to obtain an enhancement of rent. The plaintiffs in this suit, however, claimed that the defendants were not in fact sarahmoyian tenants, but were merely kaimi kastkars, that is to say, ordinary occupancy tenants. In the suit the plaintiffs claimed, firstly, that it might be declared that the defendants are kastkars of the property and that they are not permanent tenure holders of istamrari mokararidars and that the entries in the khewats and khatians were wrong. The plaintiffs, secondly, claimed that on the declaration of the facts as mentioned in the preceding paragraph they should be granted an enhancement of rent at the rate of 0-5-0 per rupee under the provisions of Section 30(b) of the Bengal Tenancy Act or in the alternative that if the defendants were by the Court held to be tenure-holders then the plaintiffs ask for a similar decree for enhancement under the provisions of Section 7 of the Bengal Tenancy Act. Lastly, they asked for recovery of arrears of rent. With this last claim this appeal has no concern. Now, upon this matter coming before the Munsif that officer settled certain issues for determination. They are as follows:—

1. Do the lands in suit form the kaimi jote of the defendants or are they held at fixed rents?

2. Are the plaintiffs entitled to enhancement of rent under Section 30(b) of the Bengal Tenancy Act?

3. Is the plea of payment true?

4. What is the rental of the land in suit?

5. To what relief, if any, is the plaintiff entitled?

3. With issue No. 3 this appeal is not concerned as to issue No. 1 the Munsif found that the lands in suit did form the kaimi jote of the defendants and that is fact the entries in the Record of Rights were wrong. I may say at once that the Subordinate Judge came to the same finding in this respect as did the Munsif and it is not now contended before me that those findings are wrong. With regard to the second issue, various considerations arose. In the first place, there had been the question as to whether it was possible for the plaintiffs to succeed in their claim for the declaration which they sought. The Munsif says that it is clear that the period of limitation for a declinatory decree in respect of entries in a Record of Rights is six years from the date of the final publication; that the final publication in respect of the lands in suit was made on the 18th of October 1911 and the suit only filed on the 22nd October 1918 and that, therefore, the plaintiff's claim for a declaration as to the status of the defendants must fail as being barred by time. The Subordinate Judge is of the same opinion and it is not now contended before me by the learned Vakil who appeared for the respondents that these decisions were not correct. The first point, however, which gives rise to difficulty is as to whether it was possible for the plaintiff, although he was unable to obtain a declaration that the entry in the Record of Rights was erroneous, still to bring a suit for enhancement of rent. The Munsif seems to consider that the plaintiff's claim for enhancement of rent is, like the declaration as to the status of the defendants, also barred by time. The Subordinate Judge deals with the matter somewhat differently. He says “I don't think that the fact that he cannot get those declarations” (that is, the declarations relating to the incorrect character of the entries in the Record of Rights) “precludes him from getting the other reliefs, even if he is successful in proving that the Survey Record of Rights is not correct. If it had been necessary for the plaintiff, as a condition precedent to have enhancement, to obtain a declaration that the Survey entry was erroneous, then of course he would have been bound to have that declaration at the outset. It has been held over and over again that an entry in a Record of Rights neither creates nor extinguishes rights, but that it is merely a rebuttable piece of evidence and, that being so, I do not see why the plaintiffs should in the present case be required to have at first the entry declared wrong before he can succeed in his claim to enforce his right to enhancement. I am accordingly not prepared to hold that, because the plaintiff cannot have the declaration asked for, he is precluded from having enhancement of rent if he is otherwise found entitled to have that relief. Now the learned Vakil who appeared for the appellants here drew my attention to the case of Amiruddin v. Saidur Rahman (1) which he regards as being a decision in support of his proposition that, where it is impossible for a plaintiff to obtain a declaration as to the status of himself or of any other person as entered in a Record of Rights owing to a bar created by the Limitation Act he is unable to bring a suit for a relief which is based upon the erroneous character of such entry. In the case quoted the plaintiff, in the Record of Rights published on the 14th November 1905, was shown as a tenant liable to pay rent to the defendant. On the 7th October 1912 the plaintiff instituted a suit against the defendant for a declaration that he was a lakheraj tenant and that he was not liable to pay any rent to the defendant. The period of limitation for a declaratory decree in respect of entries in a Record of Rights was held to be six years from the date of the final publication. It was decided in that case that the suit was substantially, one under the Section 111-A of the Bengal Tenancy Act of 1885, because the declaration which the plaintiff prayed for would have the effect, if granted, of correcting the Record of Rights: and it was decided that the suit was barred by limitation and that the plaintiff could not succeed in his desire to obtain any order from the Court that he would not be liable to pay rent to the defendant. Mr. Justice Mullick in the course of his decision says:—“The only point urged before me is whether the suit is barred by limitation or not. The learned Vakil for the appellant relies upon Ram Gulam v. Bishnu Pargash Narain Singh (2) and says that the Record of Rights is at best only evidence creating a presumption of title and that it was not necessary for the plaintiff to sue to set aside that presumption; that the suit is not one that has any reference to the Record of Rights but that it is a suit which he is entitled to bring under the general law and that his cause of action properly dates from the last rent decree (which I may add was on the 1st August, 1912). It is obvious that the suit is a declaratory suit. The learned Vakil for the appellant does not admit, but it is quite clear, that the suit is one substantially under Section 111-A of the Bengal Tenancy Act. The plaintiff carefully refrains from making any reference to the Record of Rights because he knows that the period of limitation for getting declaratory relief in respect of entries in a Record of Rights is six years from the date of the publication.” The suit was, therefore, held to be barred. But the learned Vakil, who appears for the respondent here, has drawn my attention to the case of Brij Behari Singh v. Sheo Sankar Jha (3). This decision, which is also a decision of Mr. Justice Mullick sitting with Mr. Justice Atkinson, appears to be an authority which is directly in point in the case now before me. It that case it was held that it was not necessary to sue for a declaration that an entry in the Record of Rights that the defendants were raiyats at fixed rates is wrong before instituting a proceeding for enhancement of rent under the Bengal Tenancy Act, 1885. Mr. Justice Mullick is the course of his decision remarks:—“With regard to the first holding, the plaintiffs, (who were the landlords), allege that the entry in the Record of Rights showing the defendants as raiyats at fixed rates is wrong, and that the rent is liable to enhancement in order to accord with the prevailing rates of surrounding lands with similar advantages and on account of the rise in the price of food grains within ten years preceding the institution of the suit in 1911. The Subordinate Judge found that the entry was wrong, but that the plaintiffs having failed to sue for a declaration of its erroneous character within six years after the date of the publication, the present suit for enhancement was barred by limitation under Article 120 of the Limitation Act.” The learned Subordinate Judge is, in my opinion, wrong in holding that the suit is barred by six years' limitation. It is true that in the plaint the first prayer that the plaintiffs make is that it may be declared that the defendants have only an occupancy right in the lands and that they are not jotedars at fixed rates of rent and they date the cause of action in this respect from the 5th December 1899, i.e, the date of the final publication of the Record of Rights. Now, if the suit had been one for a mere declaration, it would have been, in my opinion, one contemplated by the latter part of Section 111-A of the Bengal Tenancy Act, which is the Act applicable to the case. This was the view which was taken in Amiruddin v. Saidur Rahman where it was held that if a suit is a substantially such a declaratory suit as is contemplated in the proviso to Section 111-A of the Bengal Tenancy Act, then the plaintiff cannot, by adding a prayer for confirmation of possession, escape the six years' rule. The point from which limitation is to run is the date of the publication of the adverse entry in Record of Rights, unless there has been any subsequent invasion of the plaintiff's right, in which case it starts from the later date. If it had been necessary for the plaintiff, as a condition precedent to enhancement, to declare the entry to be erroneous, then I think he would have been bound by the ratio decidendi in Malkarjun v. Narhari (4) and Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri (5). In the former case the plaintiff's claim involved the setting aside of an execution sale and in the latter of an adoption. In both title had passed to the defendants; but an entry in a Record of Rights neither creates nor extinguishes rights, it is merely a rebuttable piece of evidence. I see no reason why the plaintiffs should in the present case have the entry declared wrong before they can succeed in their suit to enforce their right to enhancement. Whatever presumptive value attaches to the entry has been sufficiently rebutted by the entry itself, which shows that it was based on an admittedly erroneous construction of the kabuliat of 1881.

4. The next question is whether the suit for enhancement is in time. The answer must be in the affirmative, for Article 131 of the Limitation Act governs the case. A claim to enhance is a recurring cause of action and limitation runs from the date of refusal. Here the plaintiff's right to enhance the rent is based not on contract but on Statute.

5. I do not think that it would be possible to find a decision in which the circumstances could be more closely parallel to those in this case. Here the plaintiff's claim for enhancement was based upon the increase in the selling prices of staple food crops. Here, too, the defendants were entered in the Record of Rights as tenants at a fixed rate of rent; here, too, the plaintiffs were desirous of showing that entry was wrong and that as a matter of fact the defendants were ordinary kaemi tenants; here too the Munsif and the Subordinate Judge have found that the plaintiffs' contention that the defendants really were kaemi tenants and not tenants at fixed rent was correct. Under these circumstances, it seems to me that lam bound to follow the decision in the case of Brij Behari Singh v. Sheo Sankar Jha and come to the conclusion that the opinion expressed by the Subordinate Judge in regard to this point is correct.

6. The second point which has been urged before me by the learned Vakil who appears for the appellants presents considerably more difficulty. It is common ground that in the year 1913 there were certain proceedings taken under the provisions of Section 105 of the Bengal Tenancy Act with regard to the property in connection with this suit is brought Settlement was then taking place. The point which is now said to be a bar in respect of the present claim made by the plaintiff for enhancement of rent is the operation of Section 113 of the Bengal Tenancy Act. S. 105, sub-S. (1) reads as follows:—

“When, in any case in which a Settlement of land revenue is not being made or is not about to be made either the landlord or the tenant applies, within two months from the date of the certificate of the final publication of the Record of Rights under S. 103A, sub-S. (2), for a settlement of rent, the Revenue Officer shall settle a fair and equitable rent in respect of the land held by the tenant.”

7. Whilst S. 113, sub-S. (1) reads:

“When the rent of a tenure or holding is settled under this Chapter, it shall not, except on the ground of a landlord's improvement or of a subsequent alteration in area of the tenure or holding, be enhanced, in the case of a tenure of an occupancy holding or the holding of an under-raiyat having occupancy rights, for fifteen years, and, in the case of a non-occupancy holding or the holding of an under-raiyat not having occupancy rights for five years; and no such rent shall be reduced within the periods aforesaid save on the ground of alteration in the area of the holding, or on the ground specified in S. 38, clause (a).”

8. Now it is again common ground here that in these proceedings taken in accordance with the provisions of Section 105 of the Bengal Tenancy Act, the primary, and indeed at that time the only, ostensible object which the plaintiffs had, was to obtain additional rent in respect of a certain area of land which they alleged existed in excess of the area which was recorded in the Survey proceedings. I think it is of great importance to look at the decision of the Assistant Settlement Officer in this matter in order to ascertain exactly what there took place. The Assistant Settlement Officer in his decision says: “In this case the plaintiff wants fair rent to be settled for the excess land in the possession of the defendants, under Section 52(a) of the Bengal Tenancy Act. The defendants contest the claim of the plaintiff. The following issues are framed for decision:—

“(1) Do the defendants really hold any land in excess of that for which they pay rent?

“(2) Whether the holdings of the defendants were previously determined by measurement, if so, by what standard?

“(3) Has the plaintiff been able to raise the presumption in his favour under Section 52(b) of the Bengal Tenancy Act?

“(4) What allowance should be given to meet the difference resulting from the system of measurement?”

9. I may point out that we are not really concerned here greatly with these four issues, for it is admitted that there was no excess area and there is no suggestion now that there was. The 5th and 6th issues are, however, of great importance.

10. The 5th reads: “What should be the fair and equitable rate of rent for the assessment on the excess area?” and the 6th reads: “What should be the fair and equitable rent for the defendants' holdings?”

11. with regard, however, to issue No. 1 it is perhaps desirable to point out what the Assistant Settlement Officer says in connection therewith. He writes;—“There is no evidence to find that any particular plot is held in excess. I have found that the jamabandi area is based upon measurement. Hence the excess of Survey tarea after deduction of 10 per cent, over the jamabandi area is the excess area in the possession of the defendant.” With regard to issue No. 5, he writes: “There is no evidence to indicate the particular plot held in excess, hence the fair rate of rent for assessment of excess area is the average rate of rent under Section 52(5) of the Bengal Tenancy Act.” As to issue No. 6 he writes:—“The presentment of the defendant, after being added with the rent on excess land as found in issues Nos. 1 and 5, is fair and equitable. The rent settled will be noted in the annexed schedule and will take effect from the beginning of the next agricultural year 1321 Fasli.”

12. Now it may be at once observed that in addition to the finding that there was an excess area and in addition to the finding that area was not capable of being defined as a separate piece of land but merely as an area in respect of which there had been a mistake in the original measurement, the Assistant Settlement Officer fixes the rent on the excess at the same rate as that at which the other land had been originally fixed many years before and, further then that, declares that the new total rental now payable in respect of the whole remeasured area is a fair and equitable one.

13. It is urged before me by the learned Counsel, who appears for the respondent, that it would not seem that the mind of the Assistant Settlement Officer had really been directed to the question as to whether the rate of rent which was at that date, namely, 1913, being paid was a fair and equitable one within the meaning of the provisions of Section 105 of the Bengal Tenancy Act. But I must confess that, in view of the explicit language which is used by the Assistant Settlement Officer, it would be very difficult to say that was the case. In addition to this, I thick it necessary to point out that had the plaintiffs at that time thought that the original rental which had been arranged many years before was not a fair and equitable one, they could, and, no doubt, would, under the provisions of S. 105, have endeavoured to place before the Assistant Settlement Officer their views as to what they considered at the date of the Settlement the fair and equitable rent for the holding. Now the Munsif in dealing with this question comes to the conclusion that the provisions of Section 113 of the Bengal Tenancy Act, bar the plaintiff's claim in this suit for enhancement of rent. He says: “The claim for enhancement of rent, it is urged, is evidently birred under Section 113 of the Bengal Tenancy Act. I think the contention is quite sound. It appears there was a case under Section 105 of the Bengal Tenancy Act regarding the rents of the lands in suit, and although the application under that section was filed on the grouud of an increase in area under Section 54(a) of the Bengal Tenancy Act, it cannot be again said that fair rents were settled by the Survey Officer according to Section 105 under the provisions of Chapter X of the Bengal Tenancy Act. Now under S. 113, as it now stands, when the rent of a tenure of an occupancy holding has been settled under this Chapter (X) it cannot be either enhanced or reduced for a period of fifteen years except on the grounds specified in the section. The learned Pleader for the plaintiff points out that, as a matter of fact, there was no question of enhancement under S. 305 in the S. 105 proceedings and there could not possibly be, for this could not be the subject of a S. 105 proceedings before the question of status was determined under S. 106 as the defendants had been recorded in Survey as istamrari mokararidars, i.e, tenants at fixed rents. He, therefore, urges that as the question of enhancement under S. 30(b) was neither the subject-matter of the S. 105-proceedings nor could be, S. 113 does not operate as a bar to the consideration of the relief that he claims now. I cannot, however, agree with these views, for S. 113 does not impose any limitation to the section except those mentioned therein. It does not contemplate the increase of rents under S. 52(a) or of enhancement under S. 30(b). It simply says, when the rent of a tenure or holding is settled under this Chapter it shall not be altered for 15 years.' Now the rent was certainly settled by the Survey Officer in the proceedings under S. 105. I fail to see, therefore, how the plaintiff can now pray for enhancement of rents before the 15 years have elapsed. I am of opinion, therefore, that the plaintiffs prayer for enhancement must fail”. Now the Subordinate Judge has taken an entirely opposite view. He writes, “Nor am I prepared to hold that the plaintiffs claim for enhancement is barred under Section 113 of the Bengal Tenancy Act. This objection in bar of the plaintiffs claim for enhancement is based on the fact that, at his instance, there were proceedings taken under Section 105 of the Bengal Tenancy Act and that in the course of the same proceedings the rent payable by the defendants was settled and the plaintiff was declared entitled ??? It is argued, therefore, that there was a settlement of rent of the holding under Chapter X of the Bengal Tenancy Act and that, accordingly, under the provisions of S. 113 of the said Act the rent thus settled shall not, except on the ground specifically mentioned in the section, which admittedly does not arise in the present case, be enhanced for 15 years. The copy, Exhibit 7, of the Assistant Settlement Officer's order in the aforesaid case goes to show that the plaintiff's prayer therein was for additional rent in respect of excess lands held by the defendants and no other grounds for enhancement were either advanced or considered by the aforesaid Officer. That being so, I do not think that the provisions of S. 113 came into play as the claim for enhancement on the ground now put forward was not considered in the aforesaid case.” He then cites the case which has been mentioned to me by the learned Vakil for the appellants, Nawab Bahadur of Murshidabad v. Ahmad Hussain (6). In that case it was held that in order to attack the operation of Section 109 of the Bengal Tenancy Act, which contemplates creating a bar to the jurisdiction of the Civil Courts under certain circumstances, it is essential to establish that the civil suit had for its subject a matter which had already formed the subject of an application under Section 105 of the Bengal Tenancy Act. In that case it was held that the introduction of S. 105(a) had not altered the scope of the S. 109 which had to be construed on the same lines as before the introduction of that sub-section. Mr. Justice Mookerjee and Mr. Justice Cuming who heard this case remark in the course of judgment:—“S. 109 provides that, subject to the provisions of S. 109A, a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken, under Ss. 105 to 108 both inclusive.” They then at a later stage in their judgment say:—“If we were to accept the construction put forward by the appellant, we should have to read into S. 109 words which are not to be found there. We cannot hold, on the analogy of the doctrine of constructive res judicata, that the jurisdiction of the Civil Court has been constructively excluded even when a point has been neither raised nor decided under S. 105 read with S. 105A.” They held therefore, that as the matters which had previously been decided did not form the subject of determination in the civil suit which had been brought in the case which was then before them, the provisions of S. 109 could not be brought into aid. I am bound to say that I think there is a substantial distinction between the position of that case and the position which obtains in this case. Here, whatever may have been the actual ground upon which the plaintiffs started their proceedings under Section 105 of the Bengal Tenancy Act, there cannot be the least doubt that the Assistant Settlement Officer definitely stated that, in his opinion a fair and equitable rent for the holding was at such and such a figure. I cannot help feeling very strongly that if the plaintiffs are unable now to bring this suit for enhancement they have only themselves entirely to blame. It was, I should have thought, open to them in 1913 in the proceedings, settlement then going on, which they brought under S. 105 to have put forward what they then thought to be a fair and equitable rent for assessment by the Settlement Officer especially if the status of defendants was not then defined. They did nothing of the sort and now, after the lapse of comparatively a few years, they have come forward asking for a new assessment. The Subordinate Judge, however, was of the opinion that the principle in the case which I have just quoted appeared to be applicable to the present one although, as he pointed out, the facts were different. He also refers to the case of Prasanno Kumar v. Rachimuddin Howladar (7). In that case it was held that an entry in the Record of Bights setting the rent in accordance with the provisions of S. 104 to 104F unless altered by means of a suit brought as contemplated by S. 104H is conclusive and that no suit is maintainable for enhancement of rent on the ground of excess area in spite of there having been a stipulation to that effect in the kabuliat executed by the tenant prior to the Settlement proceedings; and that Section 113 of the Bengal Tenancy Act was not a bar to the maintainability of the suit of such character and had no application in such circumstances. I must confess, after carefully reading this case, I am unable to see how it seriously bears upon the question for disposal before me. The learned Subordinate Judge, however, seems to think that case bore some analogy to the present one and acting, as he says, upon the two cases which I have quoted above, he came to the conclusion, with some doubt, that the decision under S. 105 did not amount to a settlement of rent as contemplated by Section 113 of the Bengal Tenancy Act and that, consequently, it was no bar to the plaintiff's suit. I am of the contrary opinion. I think that, taking the circumstances into consideration, the language of the Assistant Settlement Officer and the fact that it seems to have been the fault of the plaintiffs themselves if they find themselves now barred by the express provisions of S. 113 from bringing, other than within the period specified, a suit for enhancement, such bar is entirely due to their own laches. Under these circumstances, I must hold that their suit is thus barred.

14. In my view, therefore, the appeal must be allowed. The judgment of the Munsif will be restored so far as it has been modified by the judgment of the Subordinate Judge in respect of the plaintiff's claim for enhancement of rent. The appellants will be entitled to their costs of this appeal and in both Courts below.

15. Appeal allowed.