MT BADARANNESSA CHOUDHURANI Vs. SMNAZIMERUNNESSA

JUDGEMENT

(1.) Appeal No. 702 is by the plaintiff arising out of a suit for declaration of her zamindari right in the disputed land and for khas possession of the same with mesne profits or in the alternative for ascertainment of fair and equitable rent. The plaintiff's case is that one Mon Gazi held an entire ijara under her which expired in 1318 B. S,, but he and his descendants were wrongfully holding the land in suit. They fraudulently got their right entered in the Record of Rights as raiyati right with the remark that: the raiyati was fit for assessment but there had been no payment of rent in respect thereof.

(2.) It appears that the plaintiff made an application under Section 105, Ban. Ten. Act, for assessment of fair and equitable rant. That application, the plaintiff did not prosecute and it was ultimately dismissed. In this suit the principal defence of the defendants is that it is barred by the provisions of Section 109, Ban. Tea. Act. The trial Court held that it was not so barred but the learned Additional District Judge in the Court of appeal below was of opinion that Section 109 was a bar to the present suit and 119 therefore dismissed the plaintiff's suit which was decreed by the trial Court.

(3.) The petition made before the revenue officer under Section 105 discloses that the plaintiff accepting the position that the: defendants were raiyats under her, applied for assessment of fair and equitable rent under Section 105. The prayer was to the effect that after having found that the defendants were plaintiff's tenants, fair and equitable rant might be assessed of the land in dispute. So far as that prayer is concerned the plaintiff is barred under Section 109, from seeking the same relief in the present suit. But I am of opinion that the prayer for khas possession on declaration of plaintiff's title is unaffected by the provisions of Section 109, Ban. Ten. Act. The scope of Section 105 is for ascertainment of rent and nothing more than that and for that purpose which is solely within the jurisdiction of the revenue officer at the time of the preparation of the record, issues may be] raised on points which are enumerated in Section 105-A, clause (c) of which relates to the question whether the relationship of] landlord and tenant exists. It is argued) on behalf of the respondents that the dismissal of the application under Section 105 on that issue, would bar a suit relating to the same matter under Section 109. The issue with regard to the existence of relationship of landlord and tenant man tioned in Section 105-A, is to be determined for the purpose of settling rant under Section 105. This is apparent from the subsequent clause in Section 105-A that "the revenue officer shall try and decide such issue and settle the rent under Section 105." So that the revenue officer is entitled to determine the issue relating to the relationship of landlord and tenant only for the purpose of settlement of rant under Section 105, The question as to the relation-ship of landlord and tenant may also be raised under Section 106 in a suit brought under that section, Reading the two, sections together it seems to me that the issue as to relationship of landlord and tenant under Section 105-A is to be determined only for the purpose of settling fair and equitable rent and for any other purpose it has to be determined under Section 106.