(1.) The subject-matter of the suit is a tenure in a permanently settled area. After the final publication of the Record of Rights prepared under chap. 10, Bengal Tenancy Act, which bad recorded that (sic) the rent of the tenure to be liable to enhancement, the landlords, who are the appellants, before us, filed an application before the Revenue Officer under Section 105, Bengal Tenancy Act, for settlement of fair rent. The tenure-holder, Jogesh, did not appear and take part in those proceedings with the result that the question as to whether the rent of the tenure was at all liable to enhancement was not raised. In an ex parte hearing the Revenue Officer proceeded on the basis of Section 7, Bengal Tenancy Act, and settled the fair rent at Rs. 271-2-0 with effect from 1339 B.S. The existing rent was Rs. 200-10-0. The respondent Birendralal Dass, who is the purchaser of the said tenure at a subsequent sale held in execution of a rent decree obtained against Jogesh, filed a suit, hereafter called the title suit, for a declaration that the tenure is a permanent one with fixed rent. One part of his case made in the title suit was that the said order of the Revenue Officer settling the rent had been obtained by the landlords by fraud and so had to be set aside. That case has been decided against him on a finding that there was no fraud. The other part of his title suit was for a declaration that the tenure was one the rent whereof could not in law be increased, as it was in existence from the time of the permanent settlement and there was no local custom or condition under which the tenure was held which entitled the landlords to enhance its rent, and that admittedly the case did not come within Clause (b) of Section 6, Bengal Tenancy Act. The lower appellate Court has arrived at a finding that the tenure was a pre-permanent settlement tenure and its rent was not liable to be enhanced, but though it held that the plaintiff was entitled to maintain a suit for the declaration that he bad asked for, as in its opinion Section 109, Bengal Tenancy Act, was not a bar, it dismissed this part of the title suit also on the ground that it was barred by lapse of time. The title suit was thus dismissed and there is no further appeal in that suit.
(2.) The landlords instituted a suit for rent claiming rent at the rate of Rs. 271-2-0 per year as settled by the Revenue Officer. The tenure-holder pleaded that he was liable to pay rent not at that rate but at the rate of Rs. 200-10-0, as the tenure was one with fixed rent. This rent suit was tried along with the title suit. The Court of first instance granted a decree to the landlords at the rate claimed by them. The tenure-holder preferred an appeal to the lower appellate Court. That appeal was heard with the appeal preferred against decree made by the first Court in the title suit. On the finding that the tenure was in existence from the time of the permanent settlement, and so was one the rent whereof could not in law be enhanced, the lower appellate Court allowed the appeal, and granted the landlords a decree at the rate of Rs. 200-10-0 only. That Court held that the aforesaid order of the Revenue Officer made in the proceedings under Section 105 did not operate as res judicata on the question as to whether the tenure was one with fixed rent and unalterable rent. This appeal, which is by landlords, arises in the rent suit.
(3.) Section 107 of the Act gives to the decision of a Revenue Officer in a proceeding under Secs.105, 105A and 106 the force and effect of a decree of a civil Court and subject to Secs.109 and 1150 makes it final between the parties. In view of this section there is no difficulty with regard to the effect of the operative part of his order. In the case before us the tenure holder did not appear in the proceedings started by the landlords under Section 105, and no issue was raised under clause (e) or (f) of Section 105A and there was no decision by the Revenue Officer on these issues. The question before us is whether the doctrine of constructive res judicata can be invoked and applied, and so the general question as to whether the doctrine of constructive res judicata is applicable to proceedings under Section 105 has to be decided. The observations we are making herein have reference to that question only.