MAHARAJA BIRENDRA KISORE MANIKYA BAHADUR Vs. KALITARA DEBI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for assessment of rent of land which, the defendants contend, they hold under a rent-free title. The Court of first instance found in favour of the plaintiff and decreed the suit. Upon appeal, the District Judge has reversed that decision, and has held, first, that the decision of the question by the Settlement Officer does not conclude the matter in controversy, and, secondly, that from the long and uninterrupted possession of the defendants without payment of rent to the plaintiff or his predecessor, the inference may legitimately be drawn that the original grant-was rent free. On the present appeal, the validity of the conclusion of the District Judge upon the second aspect of the case has not been disputed; but it has been argued that the decision of the Settlement Officer, which was adverse to the defendants, operates as res judicata, and that it was not open to the District Judge to come to an. independent determination on the merits.

(2.) From an examination of the record, it transpires that on the 17th April 1897 the Settlement Officer decided, in the course of a proceeding under Chapter X of the Bengal Tenancy Act, that the present defendants had failed to establish before him their alleged rent- free title. On the basis of this decision of the dispute between the parties, the rent was subsequently settled and the record was finally published on the 1st December 1898. The appellant now contends, with reference to Sub-section 1, of Section 9 of Act III of 1898 (B.C.), which came into force on the 2nd November 1898 that the decision of the Revenue Officer, though prior in point of time, was embodied in a Record of Rights published afterwards and precludes an investigation of the matter by the Civil Court.

(3.) Sub-section (1) of Section 9 is in these terms: "Every settlement of rent or decision of a dispute by a Revenue Officer under Section 101 or Section 106 of the Bengal Tenancy Act, 1885, before the commencement of this Act, in respect of which no appeal has, before the commencement of this Act, been preferred to the Special Judge appointed under Section 108 of the Act, shall have the force and effect of a decree of a Civil Court in a suit between the parties and shall be binding." The appellant argues that there was a decision of a dispute by a Revenue Officer under Section 106 of the Bengal Tenancy Act, 1885, and that such decision has the force and effect of a decree of a Civil Court in a suit between the parties and is final. This contention is based upon a superficial view of the provisions of Sub-section (1) of Section 9. It was ruled by this Court in the case of Radha Kishore Manikya v. Durganath Bhuttacharjee 32 C. 162 that the words "every settlement of rent or decision of a dispute, by a Revenue Officer" in Section 9 are applicable only to those cases which a Revenue Officer has jurisdiction to try and are not applicable to a decision of a Settlement Officer as to the validity of a lakheraj title under Section 104 of the Bengal Tenancy Act, 1885. This conclusion coincides with the decision of Donay Dass v. Keshub Pruhti 8 C.W.N. 741, where Mr. Justice Ghose observed that the Legislature could not possibly have intended to accord finality to a decision of a dispute by a Settlement Officer which it was beyond the jurisdiction of the Revenue Officer to decide under Section 106. This view is, in our opinion, eminently reasonable. Reliance, however, has been placed upon the later decision in Nabin Chandra Ghakrabarti v. Maharaja Radha Kishore Manikya Bahadur 11 C.W.N. 859 where the attention of the Court was not drawn to the cases of Donay Dass v. Keshub Pruhti 8 C.W.N. 741 and Radha Kishore Manikya v. Durganath Bhuttacharjee 32 C. 162. There is a dictum in this judgment to the effect that the doctrine of res judicata applies, irrespective of the question whether the decision of the Revenue Officer was or was not competent under Section 104 or 106. In support of this view reliance was placed upon the decision in Nikunja Behari Ghanda v. Radha Kisore 30 Ind. Cas. 944 : 22 C.L.J. 143. On an examination of the judgment in that case, however, it transpires that the decision is not an authority for the proposition deduced therefrom. There it was held that the particular decision of the Revenue Officer was within his jurisdiction and if the decision was within his competence, it was plainly final between the parties under Sub-section (1) of Section 9 of Act III of 1898. We may further observe, with reference to the decision in Nabin Chandra Chakrabarti v. Maharaja Radha Kishore Manikya Bahadur 11 C.W.N. 859, that although reliance was placed upon the doctrine of res judicata, the Court yet proceeded to determine the case on the merits and came to the conclusion that the claimants had failed to establish their alleged rent-free title on the basis of the sanads and the other documents produced by them. We hold accordingly that the appellant cap succeed only if the decision of the Settlement Officer, dated the 17th April 1897, was a decision of a dispute which he was competent to decide under Section 106, Bengal Tenancy Act, as it stood before its amendment in 1898.