JUDGMENT 1. This Appeal arises out of a suit for rent. The rent claimed is at the rate of Rs. 274 and odd, that being the rent settled in the year 1904 by the direction of the Special Judge on appeal, in a proceeding under sec. 105 of the Bengal Tenancy Act. The amount thus fixed, included Rs. 35 and odd, the rent assessed on the excess land. It appears that the Defendants brought a suit for a declaration that the Special Judge had no power to direct assessment of additional rent for the excess land in a proceeding under sec. 105, Chap. X, of the Bengal Tenancy Act, as it stood after the amendment in 1898. That case came up in Second Appeal to this Court and it was held by Mr. Justice Camduff that the Special Judge had jurisdiction to do so. On appeal under the Letters Patent, however, it was held that the suit could not be maintained having regard to the provisions of sec. 109 of the Bengal Tenancy Act because it was a suit concerning a matter which had been the subject of an application made and proceedings taken under sec. 105 of that Act ; and the learned Judges observed:--"How far it may be open to the present Appellant in some ulterior proceeding to raise the objections that have been urged in this suit is a matter which it is premature for us to discuss or decide at this stage." The Courts below have in the present case given a decree to the Plaintiff at the rate of Rs. 274 and odd relying on the said decision of the Special Judge and the Defendants have appealed to this Court. The only question that we have to decide in this Appeal is whether the Settlement officer had jurisdiction to settle fair rents and whether the Special Judge had the jurisdiction to direct settlement of fair rent on excess lands in a proceeding under sec. 105 of the Bengal Tenancy Act as it stood in 1904. Now, sec. 105, cl. (1) provides :--"When either the landlord or the tenant applies for a settlement of rent, the Revenue officer shall settle a fair and equitable rent in respect of the land held by the tenant." The words "in respect of the land held by the tenant" are wide enough to include excess lands held by the tenant. Now, sec. 105, cl. (1) provides :--"When either the landlord or the tenant applies for a settlement of rent, the Revenue officer shall settle a fair and equitable rent in respect of the land held by the tenant." The words "in respect of the land held by the tenant" are wide enough to include excess lands held by the tenant. Under sec. 102, the Revenue officer may be required to record, among other particulars, the situation, quantity, and one or more of the boundaries of the land held by each tenant or occupier; and the record-of-rights ordinarily include the excess land as well and we do not see any reason to hold that the Revenue officer when asked to settle the rent has the power to settle only the rent of the land originally let out to the tenant and not of any excess land which may have been found in his possession. Sec. 52, cl. (5) says " when in a suit under this section the landlord or tenant is unable to indicate any particular land as held in excess, the rent to be added on account of the excess area may be calculated at the average rate of rent paid on all the lands of the holding exclusive of such excess area ;" and sec. 105, cl. (4) provides :--"In settling rents under this section, the Revenue officer shall have regard to the Rules laid down in this Act for the guidance of the Civil Court in increasing or reducing rents, as the case may be." It is difficult, therefore, to see how the Revenue officer can, in a case coming under sec. 52 where the landlord is unable to indicate any particular land as held in excess, determine the land originally let out to the tenant or settle the rent thereof leaving the rent of the excess area unassessed. It was contended that sec. 104, cl. (2) of the Act before its amendment by Act III (B. C.) of 1898 expressly provided for settlement of rent on excess lands and the omission of that clause from sec. 105, sub sec. (1) of the amending Ac; shows that the power to settle rent on excess lands has been taken away by the amending Act No doubt, the power of the Revenue officer on his own mo ion to settle rent under sec. 105, sub sec. (1) of the amending Ac; shows that the power to settle rent on excess lands has been taken away by the amending Act No doubt, the power of the Revenue officer on his own mo ion to settle rent under sec. 104 (1) and (2) has been taken away by the amending Act ; but, in so far as the Revenue officer was empowered to settle rent on excess lands under sec. 104, cl. (2), we think that that power has not been taken away by the provisions of sec. 105, cl. (1). Sub-sec. (1) of sec. 104 of the Act before its amendment provided :--"When it does not appear that the tenant is holding land in excess of or less than that for which he is paying rent and neither the landlord nor the the tenant applies for a settlement of rent, the officer shall record the rent payable by the tenant and the land in respect of which the rent is payable ;" and sub-section (a) laid down "When it appears that a tenant is holding land in excess of, or less than, that for which he is paying rent or either the landlord or the tenant applies for a settlement of rent or in any case under sec. 101, sub-sec. (2), cl. (d), the officer shall settle a fair and equitable rent in respect of the land held by the tenant." It appears, therefore, that sec. 105, cl. (1) consolidates the provisions contained in sub secs. (1) and (2) of the Act as it stood before the amendment only with the modifications pointed out. The words "in respect of the land held by the tenant" include a case in which there is no excess land, that is, a case under sec. 104, sub-sec. (1) as well as a case in which there is excess land, that is, a case under sec. 104, sub-sec. (2), and it is to be noticed that sec. 105 (1) uses the very same words, namely, that the Revenue officer shall settle a fair and equitable rent in respect of the land held by the tenant as were used in sec. 104 (2). We are accordingly of opinion that the omission of the express provision contained in sub-sec. (2) of sec. 105 (1) uses the very same words, namely, that the Revenue officer shall settle a fair and equitable rent in respect of the land held by the tenant as were used in sec. 104 (2). We are accordingly of opinion that the omission of the express provision contained in sub-sec. (2) of sec. 104 of the old Act has not taken away the power of the Revenue officer to settle rent on excess lands. In the case of Rameswar Singh v. Bhubanesswar Jha I. L. R. 33 Cr (sic), in considering the question whether a Second Appeal lay to this Court, it was observed by the learned Judges that "the operation of sec. 105, sub-sec. (1) cannot be limited to variation of rents on the grounds specified in sec. 30 but necessarily includes variations contemplated by (sic) 52," and that notwithstanding (sic) sec. 104 has been repealed. Sec. 11 (sic) cates that the Revenue (sic) under sec. 105, sub-sec. (1), (sic) crease rent on the ground (sic) or to decrease the rent (sic) be found to contain less land than that for which the landlord was getting rent." In another case, however (Lukhi Narain Serowji v. Sri Ram Chandra Bhuiya (sic) W. N. 921 (1911), where a Second Appeal was preferred in a proceeding under sec. 105 for settlement of fair and equitable rent on excess land, and a preliminary objection was taken on behalf of the landlord Appellant that the appeal was entirely incompetent, it was held that, although the proceedings had been nominally described as framed under sec. 105, questions had been raised and decided which appropriately fell within the purview of sec. 106. It seems that according to the view taken in that case, settlement of rent on excess land does not come within the purview of sec. 105. But even assuming that it does not come under sec. 105 but that it comes under sec. 106, it cannot be said that the Revenue officer had no jurisdiction to go into the question. As pointed out in Prithee Chand Lal Chowdhury v. Basarat Ali (sic) R. 37 Cal. 30 at p. 41 (1909), "it is quite possible that the same officer having to deal with proceedings under sec 105 and suits under sec. 106, matters coming under either section are indiscriminately dealt with in the same proceeding, even if it is headed as one under sec. 30 at p. 41 (1909), "it is quite possible that the same officer having to deal with proceedings under sec 105 and suits under sec. 106, matters coming under either section are indiscriminately dealt with in the same proceeding, even if it is headed as one under sec. 105, and that this practice has prevailed for a series of years." Assuming therefore, that the case did not come properly under, sec. 105, the Revenue officer and therefore the Special Judge on appeal had jurisdiction to assess rent on the excess ads, although the proceedings might (sic) been headed as being one under sec. (sic). In this view the Appeal fails and (sic) dismissed with costs.