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Kurban Ali and anr. Vs. Jafar Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal471
AppellantKurban Ali and anr.
RespondentJafar Ali and ors.
Cases Referred and Anand Lall Paria v. Shib Chunder Mukherjee
Excerpt:
res judicata - bengal tenancy act (viii of 1885), section 105 (103-a), section 106--distinction between order under section 105 (103-a), and section 106. - .....any person affected by an entry in the record may raise an objection with regard to it, which the revenue officer is to ' receive ' and ' consider,' and dispose of in a summary manner. from an order disposing of such an ' objection ' there would seem to be no appeal for the revenue officer's order is not a ' decision ' within the meaning of section 108, sub-section (2), and no second appeal, and the order cannot have the effect of res judicata.7. on the other hand a ' dispute ' under section 106 is to be ' heard ' and ' decided ' by the revenue officer under the ' procedure laid down in the code of civil procedure for the trial of suits ' (section 107), and is subject to appeal section 108, sub-section (2), and second appeal section 108, sub-section (3). such appears to have been the.....
Judgment:

1. This is an appeal against a decision of the District Judge of Mozafferpur in a settlement proceeding.

2. The Settlement Officer had, upon the application of certain raiyats, held that their rents should be entered as Rs. 13-6-6 instead of Rs. 29-4-6, as alleged by their landlord. On appeal to the District Judge he held on the authority of the case of Dengu Kazi v. Nobin Kissori Chowdhrani (1897) I.L.R. 24 Cal. 462 that the matter was res judicata, as there had previously been a dispute between the parties in the coarse of which, viz., on the 16th December 1896, the rent had been found to be as' alleged by the landlords (the respondents before us).

3. The raiyat appellants now urge that the matter is not res judicata, as the previous decision of the Settlement Officer was passed in a case under Section 105, and was not passed between the same parties as the parties to the present suit.

4. It is not clear from the previous order itself whether it was passed in a case under Section 105, or one under Section 106. The Judge, however, describes it as having been passed in a case under Section 105, but on the authority of Dengu Kazi v. Nobin Kissori Chowdhrani (1897) I.L.R. 24 Cal. 462 seems to think it must be regarded as having been passed in a case under Section 106 and so, having the force of a decree, must bar the present suit. There is no doubt much in the order of reference and in the judgments in Dengu Kazi's case, which favours this view, for in that case it has been held that when a dispute arises about an entry in the Record of Rights, whether during the pendency of the publication of the draft record, or even before the making of any particular entry in it, and when such a dispute is decided by the Settlement Officer his decision is to be regarded as one in a case under Section 106, from which a second appeal lies under Section 108, Sub-section 3.

5. But it must be considered in the first place what the two Sections 105 and 106 mean, and in the next place, what the case of Dengu Kazi has decided.

6. Clearly, we think Section 105 means to lay down that, during the pendency of the draft publication, any person affected by an entry in the record may raise an objection with regard to it, which the Revenue Officer is to ' receive ' and ' consider,' and dispose of in a summary manner. From an order disposing of such an ' objection ' there would seem to be no appeal for the Revenue Officer's order is not a ' decision ' within the meaning of Section 108, Sub-section (2), and no second appeal, and the order cannot have the effect of res judicata.

7. On the other hand a ' dispute ' under Section 106 is to be ' heard ' and ' decided ' by the Revenue Officer under the ' procedure laid down in the Code of Civil Procedure for the trial of suits ' (Section 107), and is subject to appeal Section 108, Sub-section (2), and second appeal Section 108, Sub-section (3). Such appears to have been the intention of the legislature. The question then is, 'How far has the Full Bench decision in Dengu Kazi's case altered this?' In this case, a dispute had arisen between landlord and tenant in certain settlement proceedings, which was decided by the Settlement Officer, in what he described as a case under Section 106. When this case came in second appeal before this Court it was objected that there was no second appeal, as when the case was decided, no record of rights had been completed or published, and so on the authority of the oases of Gopi Nath Masat v. Adoito Naik (1894) I.L.R. 21 Cal. 776 and Anand Lall Paria v. Shib Chunder Mukherjee (1895) I.L.R. 29 Cal. 477 it was contended the case had been decided not under Section 106 but under Section 105. Now the decision in Dengu Kazi's case, as we understand it, lays down that a ' dispute ' may arise at any time, both before and after the publication of the draft record and even before the record is made, and that, whenever a dispute arises in this way, and is decided under Section 106, it is open to second appeal. The Full Bench does not seem to us to mean to lay down that when an ' objection ' is made under Section 105 and is 'received ' and considered ' by the Revenue Officer, i.e., summarily without following ' the procedure laid down in the Code of Civil Procedure for the trial of suits,' his order disposing of it will be open to either appeal or second appeal, or will have the effect of res judicata.

In the present suit, the previous order of the Revenue Officer is described by the Judge as one under Section 105, and we have examined it and it appears to us to be an order under Section 105; for the Revenue Officer in disposing of it does not seem to have adopted ' the procedure laid down in the Code of Civil Procedure for the trial of suits.' Hence we do not think it can have the effect of res judicata.

8. The appellants' objection that the previous order is not between the same parties, as the present suit is founded on the fact that in the previous order the name of the landlord is recorded as Sultan Ali, while in the present suit the names of the landlords are Kurban Ali and Sultan Ali, that is to say, there is an additional landlord in the present suit. It may be, however, that Kurban Ali was a party to the case under Section 105, though his name does not appear in the form in which the Revenue Officer has recorded his order. We could not decide this question without having the whole record of the Section 105 case before us. We, therefore, do not rest our decision on this ground.

9. For these reasons we consider that the Judge is wrong in holding that the present suit is barred by res judicata.

10. We accordingly set aside his decree, and remand the case to him to be disposed of on the merits. Costs to abide the result.


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