BHABADEB CHATTERJEE Vs. HEMANTA KUMARI DEBI

JUDGEMENT

(1.) This appeal has arisen out of a suit for confirmation of possession on declaration of plaintiff's Niskar right to the land in suit, which is eighteen cottas in area in two plots deser bed in the plaint. It is recorded in the settlement khatian to he in possession of the plaintiff's son and some other persons and liable to the payment of rent. This settlement was held at the instance of the defendant who purchased the Patni right in the Mouza, in which this holding is included, at a Patni sale. The defendant subsequently applied for settlement of fair and equitable rent under Section 105, Bengal Tenancy Act, and the rent was fixed by the Settlement Officer in an ex parte proceeding. Thereafter the defendant instituted a suit for recovery of rent in 1928 and subsequently the plaintiff instituted the present suit for a declaration of her Nishkar right to this land. The suit was dismissed in the trial Court but decreed in the Court of appeal below. The grounds urged in this appeal are, firstly that the proceedings under Section 105 operate as a bar to the present suit; secondly that the suit is barred by limitation and thirdly that the findings of the Court of appeal below in reference to the claim of Nishkar title are not sufficient to establish it.

(2.) The first point depends upon the provisions of Section 107, Bengal Tenancy Act, which lays down that: In all proceedings under Section 105, the Revenue Officer shall adopt the procedure laid down in Civil Procedure Code, for the trial of suits, and his decision in every such proceeding hall have the effect of a decree of a civil Court in a suit between the parties, and subject to the provisions of Secs.108 and 115-C shall be final.

(3.) It is therefore contended that the Settlement Officer having decided that the holding in question is liable to the payment of the rent which was fixed by him, the present suit is barred. On the other hand it is contended for the respondent that inasmuch as the question whether the land is rent free, as claimed by the tenant, was not raised and was not in issue in the proceedings under Section 105 the decision in those proceedings therefore was no bar to the present suit. In support of the appellant's contention the case of Apurba Krishna Roy v. Shyama Charan Pramanik AIR 1920 Cal 253 is referred to; there, in proceedings under Section 105 the tenants actually appeared and claimed that the land was Nishkar, but subsequently they did not prosecute the defence and the application was ultimately decided ex parte. That case is distinguishable from the present case, inasmuch as in the present case there was no appearance at all and whereas in the previous case it may be said that there was an issue as to whether the land was Lakheraj or not because it was raised in the written statement. In the present case no such issue can be said to have been raised. Another case which has been cited for the appellant is the case of Prafulla Chandra V/s. Kshetra Lal Sinha . This case was mainly decided on the question of fraud, but in the final paragraph of the judgment it was stated that the claim that the land Was Lakheraj was also barred by res judicata owing to the ex parte settlement of rent under Section 105, Bengal Tenancy Act. There was no reference in the judgment to Section 107, Bengal Tenancy Act, nor to any other decision, and there was no discussion as to the grounds on which their Lordships held that the suit was barred by res judicata. It is true that under Section 107 of the Act the decision under Section 105 has the force of a decree of a civil Court, but that does not make the decision res judicata on issues which have not been raised in the proceedings. It has been held that the principle of constructive res judicata cannot be applied in connexion with proceedings under Section 105, Bengal Tenancy Act, and of course Section 11, Civil P. C, would not apply in the case of such proceedings.