1. This is an appeal by the first defendant in a suit for a twofold declaration, viz., first, that proceedings under Chapter X of the Bengal Tenancy Act, commenced at his instance, were fraudulent, ultra vires and void; and secondly, that, if the proceedings were not vitiated by fraud, the plaintiffs were maurasi mokarari raiyats in respect of the disputed lands (and not tenure-holders as entered in the Record of Rights) , that the lands formed distinct raiyati tenancies (and not one tenure) and that the defendant-landlord was not entitled to realise Rs. 84, which has been assessed by the Settlement Officer as fair rent under Section 105 of the Bengal Tenancy Act. The suit was defended on the ground, amongst others, that it was barred under Section 109. The Court of first instance gave effect to this contention and dismissed the suit. Upon appeal the District Judge has reversed that decision and has remanded the suit for trial on the merits. The present appeal is directed against this order of remand, and raises the question whether the suit is maintainable notwithstanding the provisions of Section 109.
2. Section 109 provides that, subject to the provisions of Section 109A, a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted, or proceedings taken under Sections 105 to 108,'both inclusive. Before we determine the scope of Section 109and its effect when applied to the present suit, we may point out that the proviso to Section 111 A is of no assistance to the plaintiffs. That proviso applies only to a case where the Record of Rights has been framed in pursuance of an order made under Section 101, Sub-section (2), Clause (d); that is, to a case where a settlement of land revenue is being or is about to be made; but in the case before us, the Record of Rights was prepared at the instance of the landlord under the provisions of Section 1 1, Sub-section (2), Clause (4). Consequently, we have to determine how the suit is maintainable notwithstanding the provisions of Section 109.
3. It is plain that in so far as the plaintiffs ask for a declaration that the proceedings under Chapter X were vitiated by fraud, Section 109 does not present an effective bar. No question of fraud was the subject of the application under Section 105; consequently the suit, treated as a suit for relief on the ground of fraud, is maintainable; with regard to the alternative declaration, the appellants contend that as the questions for determination might have been made the subject of controversy in the proceedings under Section 105, they cannot be investigated in the present suit. In our opinion, there is no force in this contention. Section 105A, no doubt, authorises the Settlement Officer, in the course of proceedings under Section 105, for the settlement of fair and equitable rent, to investigate questions which would otherwise be determined at the instance of the aggrieved party in a suit instituted under Section 106. But in the case before us no such question was raised or investigated in the proceeding under Section 105. The reason assigned by the plaintiffs is that they were not apprised of the proceedings under Chapter X and, consequently, did not appear before the Settlement Officer. Whether the tenants were or were not aware of the proceedings under Chapter X, the fact remains that the matters now in controversy did not form the subject of investigation under Section 105. Consequently, on a plain and literal reading of Section 109, the position cannot be maintained that the present suit concerns a matter which has already been the subject of an application under Section 105. The appellant, however, urges us to put a wider construction upon Section 109. He contends that, as in a case where Section 11, Code of Civil Procedure, is applicable a question which might and should have been raised is deemed to have been raised and decided, we should hold under Section J 09 that a matter has been the subject of an application under Section 105, whenever it might, if the defendant had so chosen, have been raised and decided under Section 105 read with Section 105A. We are of opinion that this contention is unsound. If we were to accept the construction put forward by the appellant, we should have to read into Section 109 words which are not to be found there; we cannot hold, on the analogy of the doctrine of constructive res judicata, that the jurisdiction of the Civil Court has been constructively excluded even when a point has been neither raised nor decided under Section 105, read with Section 105A. In this connection, we may observe that Sections 105 and 109 were inserted in the Bengal Tenancy Act, III of 1898 B. C. Section 105A was subsequently introduced into the Bengal Tenancy Act, by Section 26 of Act I of 1907 B. C. But though the scope of Section 105 was thus widened and Section 105A was included in Section 109, the language of Section 109 was left unaltered. If the Legislature had intended to adopt the view put forward by the appellant, the language of Section 109 would, no doubt, have been suitably modified. As pointed out by this Court in a long line of cases, amongst them in Pandab Dowari Das v. Ananda Kishun Chakravarti 7 Ind. Cas. 102 : 12 C.L.J. 195 : 14 C.W.N. 897; Shashi Bhusan Hazrah v. Sheikh Esabar 29 Ind. Cas. 122 : 19 C.W.N. 636 and Sashi Bhusan Hazra v. Aswini Comar Samanta 28 Ind. Cas. 981 : 19 C.W.N. 637n to attract the operation of Section 109, it is essentia] to establish that the civil suit has for its subject a matter what has already formed the subject of an application under Section 105. These cases were decided before the introduction of Section 105A into the Bengal Tenancy Act. But as the introduction of Section 105A has not altered for our present purpose the scope of Section 109, Section 109 must now be construed on the same lines as before the introduction of Section 105 A. In this view, it is plain that in so far as the plaintiffs seek for a declaration that they are maurasi mohirari raiyats and not tenure-holders and that the lands held by them constitute not one tenure but distinct raiyati holdings, the suit is clearly maintainable. These matters did not form the subject of determination under Section 105, indeed, the Settlement Officer had enquired into the point at an antecedent stage, namely, when the Record of Rights was under preparation. The only matter for investigation in the proceeding under Section 105 was the question of fair and equitable rent of the lands shown in the Record of Rights as held by the tenants as tenure-holders under their landlord. But in so far as the plaintiffs seek a declaration that the defendant is not entitled to realise Rs. 84 as rent in respect of the land in suit, the suit is clearly barred by Section 109, for this question directly relates to a matter which had formed the subject of the application under Section 105. This view is in accordance with that taken by this Court in the case of Sheodhani Pandey v. Moharani Beni Pershad Koeri 16 Ind. Cas. 935 : 16 C.L.J. 67. It is, consequently, superfluous to determine what the position of the plaintiffs will be, if they succeed in this litigation and obtain the other declaration which they seek. It is conceivable that in such a contingency, if notwithstanding their success the landlords institute a suit for rent against them on the basis of the determination under Section 105, they may be met successfully by a plea which need not be elaborated for the purposes of this suit.
4. The result is that the prayer for a declaration that the defendants are not entitled to get the assessed amount of jama of Rs. 84 will be struck out from the plaint. Subject to this alteration, the order for remand made by the District Judge will stand. As the appeal has substantially failed, the appellant must pay the respondents their costs in this Court.