JUDGMENT Mookerjee, C.J. - These are appeals by the Plaintiffs in suits for recovery of the value of crops. The tenant Defendant entered upon the land on the basis of an agreement in the following terms : "I (the Defendant) do execute this kabuliyal for three years from 1310 to 1313 and promise to cultivate the land in proper time and grow rua paddy, and on its being ripe, shall thresh out the paddy and after taking my share for the labour shall deliver you your share--7 maunds--every year in Pous, If I neglect to deliver paddy then I shall pay, as the price of paddy, Rs. 14 at the rate of Rs. 2 per maund, and shall be liable for damages." It may be a matter for argument, whether this agreement was in reality a contract of tenancy or whether the Defendant was only a labourer who undertook to bring the land under cultivation. But we shall assume, in favour of the Defendant, that he was a tenant. The question is, whether he is liable to pay rent to the landlord at the contract rate or at a rate fixed by the revenue authorities in commutation proceedings. The Subordinate Judge has held in favour of the Defendant that he is bound to pay rent annually at the commuted rate and he has further expressed the opinion that it is not competent to the Civil Court to consider the legality of the order made by the revenue officer. We are of opinion that the view taken by the Subordinate Judge cannot be supported. An order for commutation of rent can be made only under sec. 40 of the Bengal Tenancy Act which provides as follows : "Where an occupancy raiyat pays for a holding rent in kind, or on the estimated value of a portion of the crop or at rates varying with the crop, or partly in one of those ways and partly in another, or partly in any of those ways and partly in cash, either the raiyat or his landlord may apply to have the rent commuted to a money rent. Consequently, the essence of this provision is that the rent should be in reality payable in kind either wholly or partially. It is further necessary that the tenant should have the status of an occupancy raiyat. Consequently, the essence of this provision is that the rent should be in reality payable in kind either wholly or partially. It is further necessary that the tenant should have the status of an occupancy raiyat. In the present case, the tenant is not an occupancy raiyat. The lands he holds lie in the khamar of the landlord ; and, consequently, under sec 116 of the Bengal Tenancy Act, nothing in Chap. V could confer upon him a right of occupancy, as the land was held under a lease for a term of years. Besides this the rent is not Really payable in kind : although nominally the rent was payable in kind, the parties had contracted that upon failure of the tenant to pay the rent in kind, the rent would be leviable at the rate of Rs. 14 annually. Consequently, there was no room for commutation, under sec. 40 : indeed ; the parties had already commuted the rent by their contract. 2. The order of the settlement officer must consequently be deemed to have been made without jurisdiction ; and if his order was without jurisdiction, the Civil Court is competent to declare that it was a nullity, as was ruled in the case of Jadunath Manna v. Pran Krishna Das 27 C. L. J. 569 (1917). 3. The result is that the appeals are allowed and the decrees of the Subordinate Judge modified ; decrees will be made at the contract rate instead of the commuted rate in respect of the year 1322. The Appellants are entitled to their costs in this Court. This judgment will govern all the appeals. It was faintly suggested that there might be a doubt as to the competency of some of these appeals ; but clearly the decree of the Subordinate Judge Sad decided a question of the rate of rent annually payable, namely, whether rent was payable at the commuted rate or at the contract rate. In each of the appeals, consequently, the same order will be drawn up. Fletcher, J. I agree.