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 Sections 105, 105A and 106 the force and effect of a decree of a civil Court and subject to Sections 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.
4. As finality is the effect of res judicata, an important test would be to see if a suit for a declaration in respect of the matter pleaded as res judicata could lie. The scope of Section 109 would therefore be an important matter for consideration for two reasons, namely,
(i) because the finality given to the decision of a Revenue Officer by Section 107 is subject to Section 109 and
(ii) that the Legislature could not have intended that that matter would be res judicata if it had given a right of suit in respect thereto after the decision of the Revenue Officer in proceedings under Section 105.
5. There are a number of decisions relating to the scope of Section 109. They do not speak with one voice. In fact we were at one time inclined to refer the matter to the Pull Bench but on further consideration we have thought it fit to decide the point ourselves as there is a great preponderance of judicial opinion in favour of the view we are taking and in view of some important changes in Section 109 made by the amendment which came into force in 1929.
6. Before the Amending Act of 1898 the provisions of this part of chap. 10 of the Act were substantially different from what they became thereafter. It is not necessary to notice the difference in detail. Applications for settlement of rent and for correction of entries in Record of Rights had to be made before final publication of the Record of Bights. There was no provision for those matters after the final publication. There was no provision corresponding to the last part of Section 103B, as it now stands. The presumption of correctness attached only to entries which had been marked by the Revenue Officer in the Record of Bights as undisputed. There was no provision corresponding to Section 109. Section 107 was there substantially in the same form as it now exists, except that the qualification was not there. The qualification could not be there as there was then no provision similar to that contained in Section 109 and though provisions for appeal from the decision of the Revenue Officer to the special Judge and then to the High Court had been made in Section 108, provisions similar to Section 1150 of the Act as it now stands, no express saving was made in Section 107 in respect of the decisions given in appeal from the decision of the Revenue Officer. That, however, is not a matter of substance. It can at most be considered as a case of imperfect drafting. By the amendment of the year 1898, Sections 105 and 106 were introduced substantially in the same form as they now exist; presumption of correctness after final publication was given to all entries in the Record of Rights and Section 109 as it now stands, except with the provisos, was introduced. Those provisos were inserted by the Amending Act of 1928, which came into force in 1929 Section 105A was introduced in West Bengal by the amendment of 1907 and in East Bengal by that of the year 1908, and Section 109 was amended by including therein Section 105A also.
7. It is apparent from what we have said above that after the amendment of 1898 and before that of 1907-1908 a decision settling rent in a proceeding under Section 105 could not have operated as constructive res judicata on the question of the status of the tenant or on the nature and incidents of the tenancy for the reason that those issues could not in law have been raised in such a proceeding, and so there could be no scope for the 'rule of might and ought' on which the doctrine of constructive res judicata rests, and Section 109 as it stood then could not have barred a suit for declaration of status of the tenant or of the nature of the tenancy on the ground that rent had been settled by the Revenue Officer under Section 105 for the selfsame reason, namely those questions, of status etc., could not have been the subject matter of a proceeding under Section 105, Pandale Dorai Das v. Annada Kishore (10) 12 C.L.J. 195; Sashi Bhusan v. Esalur Ali Nazir 3 A.I.R. 1916 Cal. 738. The phrase 'subject of an application...made under Section 105' could have had only one meaning, namely the matter directly involved, what was actually prayed for by the applicant in his application, namely fixation of the amount of rent, and so the fairness of the amount of rent fixed by the Revenue Officer could not have been agitated in a suit or proceeding in a Civil Court. After the amendment of 1907-1908, when Section 105A was introduced into the statute and before the amendment of Section 109, in the year 1928, the question was not so plain, as issues relating to status or the nature of the tenancy and other matters mentioned in the different clauses of Section 105A, could be raised in a proceeding under Section 105, for settlement of rent either by the parties or by the Revenue Officer suo motu and determined by him in that proceeding. The reported cases can be grouped under three broad heads namely: (1) Where no such issue as could be raised under Section 105A was actually raised either by a party or the Revenue Officer. The cases falling within this group were generally cases where the entry in the Record of Rights afforded a presumption in favour of the applicant for settlement of rent and the opposite party did not appear, and so the order settling the rent was made ex parte. (2) Cases where the opposite party to the application made under Section 105, did appear and file objections raising such issue or issues, but ultimately the order settling rent was passed ex parte without any express decision on the said issue or issues. (3) Cases where any such issue was actually raised and decided by the Revenue Officer in express terms and he made that decision in order to enable him to pass his order in respect of the settlement of rent. The case we have before us is of the first mentioned type, and so we propose to examine in some detail the reported cases falling within this type. We do not propose to examine critically cases falling within the third group. Dharani Mohan Roy v. Ashutosh Mookerjee : AIR1924Cal907 was a case of this type. There, an issue as to whether the holding was rent-free was expressly raised by the tenant, but in spite of his contention that no rent could be settled for that reason, rent was settled by the Revenue Officer at a certain figure. The landlord thereafter filed a suit for arrears of rent at the rate so settled. The tenant pleaded rent-free title but it was held on. Letters Patent appeal that he was precluded from urging that defence as the decision of the Settlement Officer operated as res judicata. There was no question of constructive res judicata, for the matter was actually raised in issue and an actual decision was given thereon. There would also be no scope for saying that the issue as to rent-free title was made constructively the subject of the proceeding under Section 105 and so would have come within the bar imposed by Section 109.
8. The judgment was delivered by Sir Ashutosh Mookerjee who had decided the case in Nawab Bahadur of Murshidabad v. Ahmad Hussain 4 A.I.R. 1917 Cal. 850 and Rankin J. as he then was, concurred. In fact in the judgment when dealing with Section 109 he drew a distinction between the case where the Revenue Officer had decided the issue and the case where he did not for the reason that issue was not raised before him. The case in Sajjad Ahmad v. Trailokya Nath : AIR1928Cal479 , was decided by Rankin C.J. and D.N. Mitter J., in 1927. The facts of that case were as follows. The record of rights recorded a tenancy in the possession of the defendant with an area of 21 bighas. The landlord applied for settlement of rent under Section 105 and the Revenue Officer settled the rent at Rs. 18-5-9, per year with effect from 1326. The landlord instituted a suit for rent for 1325 to 1328, at the rata so settled. The tenant pleaded suspension of rent, in the alternative for proportionate abatement of rent. His case was that his holding had an area of 25 bighas odd, and not 21 bighas, the original rent of which was Rs. 15 odd apd that he had been dispossessed by landlord from 5 bighas odd. It was held that m view of the fact that the Revenue Officer had settled Rs. 18-5-9 as being fair rent for 21 bighas the tenant could not urge the plea on that basis, but in arriving at that conclusion the learned Judges gave different reasons. Mitter J. relied upon Dharani Mohan Roy v. Ashutosh Mookerjee : AIR1924Cal907 and stated that the decision of the Revenue Officer was conclusive on two questions, namely, (1), the area of the holding and (2), the rent of the holding, and remarked that the fact that the decision of the Revenue Officer was an ex parte one did not make any difference. He thus decided the case by applying the doctrine of constructive res judicata. The learned Chief Justice, however, gave different reasons. He said that the doctrine of suspension of rent depended solely upon the fact that rent due is an entire sum in respect of the land demised, and the plea of suspension of rent could not be upheld unless the decision of the Revenue Officer was set aside in that rent suit, or no effect given to it, for the Revenue Officer had found that Rs. 18 odd was the fair rent for 21 bighas, and so the entirety of the original rent was insufficient with and had been destroyed by the finding of the Revenue Officer.
9. For the reason that both the learned Judges of the Division B neb did not rest their decision on constructive res judicata we do not consider ourselves bound by that decision in the matter of application of that doctrine to the case before us.
10. We will now examine the other cases which fall within the first type. They can be classified under two sub-groups (a) cases where the question was whether Section 109 barred the suit brought after the decision of the Revenue Officer, and (b) cases where the matter for consideration was the applicability of the doctrine of constructive res judicata.
11. The cases falling within sub-group (a) are the following: (1) Nawab Bahadur of Murshidabad v. Ahmad Hussain 4 A.I.R. 1917 Cal. 850, decided in 1916. (2) Kshetralal Singha v. Prohlad Chandra : AIR1927Cal603 ; Priyambada Debi v. Priya Nath 13 A.I.R. 1926 Cal. 822; (4) Bhabadeb Chatterji v. Gopesh Chandra : AIR1934Cal306 Mahomed Rahul Amin v. Dinabandhu : AIR1940Cal235 and (6) Profulla Chandra v. Kshetralal Singha : AIR1929Cal417 .
12. In the first five cases it was held that Section 109 did bar a suit for declaration when the matter in respect of which the declaration was sought for was not in fact raised in issue in the proceedings under Section 105, though it could have been raised in issue by virtue of the provisions of Section 105A. Those decisions proceed on the basis (as was expressly stated in Nawab Bahadur of Murshidabad v. Ahmad Hussain 4 A.I.R. 1917 Cal. 850) that as Section 109 was not amended when Section 105A was introduced by the amendment of 1907-1908 the scope of Section 109 remained as it was before, and so the jurisdiction of the Civil Court cannot be taken to have been 'constructively excluded when the point had been neither raised nor decided in a proceeding under Section 105 read with Section 105A.' In the last mentioned case Section 109 was held to be a bar in such a case. This decision wag contained in two lines with no reasons given in support, and none of the series of earlier cases in which a contrary view had been taken were noticed. In Apurba Krishna v. Shyama Charan 7 A.I.R. 1920 Cal. 253, Section 109 was held to bar the suit, but on the ground that the matter in respect of which the suit for declaration was brought was actually raised in issue under Section 105A in the proceeding for settlement of rent. Nawab Bahadur of Murshidabad v. Ahmad Hussain 4 A.I.R. 1917 Cal. 850 which was noticed in the judgment was not dissented from but distinguished on the ground that in that case the issue was not actually raised under Section 105A. In this state of the case law on the subject we cannot give preference to the case in Profulla Chandra v. Kshetralal Singha : AIR1929Cal417 over a long series of cases where reasoned judgments were delivered some of which we have noticed above.
13. The cases where the question of constructive reg judicata came up for consideration are as follows : Sajjad Ahmad v. Trailokya Nath : AIR1928Cal479 , Bhabadeb Chatterji v. Hemanta Kumari Debi : AIR1934Cal467 , Khetralal Singha v. Kaji Mahomed Zikaria ('34) 60 C.L.J. 13.
14. Second appeal No. 210 of 1937 (unreported) which was decided by Henderson and Rahman JJ. on 7-3-1938 arose out of a suit brought for declaration and the bar of Section 109 was pleaded. The learned Judges delivered their judgment following Sajjad Ahmad v. Trailokya Nath : AIR1928Cal479 and Khetralal Singha v. Kaji Mahomed Zikaria ('34) 60 C.L.J. 13 and dissenting from Bhabadeb Chatterji v. Hemanta Kumari Debi : AIR1934Cal467 but this part of the judgment is obiter dictum.
15. We have already dealt with the case in Sajjad Ahmad v. Trailokya Nath : AIR1928Cal479 . The case in Apurba Krishna v. Shyama Charan 7 A.I.R. 1920 Cal. 253, also was not really a case of constructive res-judieata, for the issue was actually raised under Section 105A and the decision of the Revenue Officer necessarily involved a decision on that issue. In Khetralal Singha v. Kaji Mahomed Zikaria ('34) 60 C.L.J. 13 the issue of relationship of landlord and tenant raised in the rent suit was held to be concluded by res judicata. From the brief statement appearing in the judgment it seems that that issue was raised before the Revenue Officer and that the Revenue Officer settled fair rent after holding that the tenant defendant 'was under a liability to pay the rent' which he assessed. Accordingly the only decision that is binding on us is that given in Bhabadeb Chatterji v. Hemanta Kumari Debi : AIR1934Cal467 , which has laid down that the principle of constructive res judicata cannot be applied, and we follow that decision.
16. We have already remarked that the principle of constructive res judicata cannot be invoked on the strength of a decision given by a Revenue Officer if the Legislature has expressed the intention of allowing a suit to be brought in respect of the matter after the decision of the Revenue Officer. Before its amendment in 1929 Section 109 was couched in terms of prohibition. After the decision of the Full Bench in Purna Chandra v. Narendra Nath : AIR1925Cal845 , and with primary intention to nullity its effect, Section 109 was amended by the Act of 1928. That amendment brought in the two provisos. The first proviso had the effect of nullifying the the effect of the Full Bench decision but the second proviso went further. That proviso taken with the last part of Section 107 has the effect of making the decision of a Revenue Officer final only when that officer had actually adjudicated upon the matter. This gives some indication of the intention of the Legislature to the effect that the doctrine of constructive res judicata was not to be applied on the strength of decisions of Revenue Officers in proceedings under Sections 103 to 108. The result is that this appeal is dismissed with costs.