Raj Mohan Guha v. Alam Gazi

This is an Appeal on behalf of the Plaintiff in a suit for rent. The Plaintiff claims rent at the rate of Rs. 7-4 on account of 7 bighas and 5 cottahs of land in the occupation of the Defendants. The Defendants contend that they hold 5 bighas and 17 cottahs on a rental of Rs. 5-13-7 p. and in support of their allegation, they rely upon an entry in a record-of-rights finally published on the 20th June, 1904. The Plaintiff, on the other hand, relies on that very record as subsequently amended by the Settlement Officer on the 2nd September, 1907. The District Judge has refused to recognise the amendment of the record on the ground that it was made without jurisdiction. The question in controversy, therefore, is whether the alteration in the record was duly made.

It appears that after the final publication of the record-of-rights, fair and equitable rent was settled on the 21st December, 1905 in a proceeding under sec. 105 of the Bengal Tenancy Act, at the rate of one rupee per bigha. The tenants were dissatisfied with this assessment and preferred an appeal to the Special Judge, which was dismissed on the 9th April, 1906. Subsequently it was discovered that the area had been erroneously put down at 5 bighas and 17 cottahs in the record-of-rights. Accordingly, the Settlement Officer, on the 2nd September, 1907 amended the record, so as to alter the entry about area from 5 bighas 17 cottahs to 7 bighas and 5 cottahs: a consequential alteration was made in the entry relating to the rent payable. The District Judge has held that this alteration was unauthorised, first, because under sec. 108A of the Bengal Tenancy Act, an alteration of this description could be made only within one year from the date of the publication of the record: secondly, because, such alteration could not be made after an appeal in a proceeding under sec. 105 had been heard and decided by the Special Judge. In our opinion, the view taken by the District Judge cannot be supported.

It was taken for granted in the Court below that the Settlement Officer proceeded under sec. 108A of the Bengal Tenancy Act: but there is no foundation for this assumption. The section applies only to revenue officers especially empowered by the Local Government in that behalf. It is not shown that the Settlement Officer in this case was so empowered. It is further clear that the Settlement Officer could not have acted under sec. 108A because he amended the record more than a year after the date of the certificate of its final publication.

It is worthy of note that sec. 108A has a much wider scope than the correction of obvious errors or incidental slips in a record-of-rights. It entitles the Settlement Officer to correct the record where there has been a bonâ fide mistake: such mistake need not necessarily be the mistake of the Settlement Officer: it may very well be a mistake made by one of the parties concerned. Sec. 108A, in substance, authorises a Settlement Officer to reconsider the matter on the merits. In the present case, where apparently a clerical or an arithmetical error had to be corrected, the Settlement Officer, even if he had been duly authorised, need not have availed himself of the provisions of that section. He may be deemed, therefore, to have acted in the exercise of a power inherent in every Court to correct obvious errors or incidental slips in its own record. Lord Justice Bowen observed in Mellor v. Smite, that “every Court has inherent power over its own records; as long as the records are within its power, it can set right any mistake in them; it would be perfectly shocking if the Court could not rectify an error which is really one of is own mistakes”. Equally emphatic are the observations of Lord Blackburn in Lawrie v. Lees and of Lord Watson in Hatton v. Harris. Hence the only question for consideration is, whether the Settlement Officer had authority to amend the record-of-rights at the stage he proceeded to set it right. It has been contended that his authority had terminated, because the Special Judge had already confirmed his order upon the question of fair and equitable rent in the proceeding under sec. 105. No doubt, the amount of fair and equitable rent must depend upon the area, but it is plain as stated by the District Judge himself, that the substantial matter in controversy before the Special Judge was, whether the rate of one rupee per bigha was or was not fair and equitable. No question appears to have been raised before the Special Judge as to whether the area was 5 bighas 17 cottahs or 7 bighas 5 cottahs. Under these circumstances, we must hold that the Settlement Officer had authority to correct the record on the 2nd September, 1907. We are not concerned with the question, whether the record as amended represented the true state of facts. The only effect of our decision is that the landlord is entitled to rely upon the corrected record under sec. 103B(c) of the Bengal Tenancy Act. But it is open to the Defendams to rebut this presumption and to establish, if they can, that the record as amended is erroneous. This aspect of the matter does not appear to have been considered in either of the Courts below.

The result is that this Appeal is allowed, the decrees of the Courts below set aside and the case remanded to the Court of first instance for re-trial. The Court will proceed on the assumption that the amended record is correct; but it will be open to the Defendants to rebut this presumption. Each party will pay his own costs up to this stage of the proceedings.

S.C.M

Appeal allowed.