1. These are a number of appeals which arise out of a number of rent suits which were tried together. The main contention of the defendants with which we are now concerned is that there is a custom of suspension of rent when the crops have been destroyed by flood or drought. The trial Court gave effect to the contention and dealt with the cases on this footing dismissing the claim for rents for the year 1329 Amli. The landlord appealed. The lower appellate Court found with regard to the holdings within the touji No. 274 that the defendants had failed to prove the existence of any such custom. This disposed of appeals Nos. 173, 174,178, 182, 187, 188, 190,191, 194,195 and 197 of the lower appellate Court. With regard to the appeals with regard to tenancies within touji No. 275 he held that the question was res judicata because in certain proceedings under Section 105, Ben. Ten. Act, it had been held that no such custom existed. He therefore decided these appeals in favour of the zamindar.
2. With regard to appeal No. 186, which he dealt with separately, he found no evidence of any such custom. He was clearly influenced in coming to this finding by the fact that it had been found in the Section 105 proceedings that no such custom existed in the neighbouring estate. With regard to the appeals relating to the holdings falling within touji No. 274 the lower appellate Court has come to a finding of fact on the evidence which we cannot interfere within second appeal. With regard to the holdings falling within touji No. 274 all these holdings except appeal No. 186 (of the lower Court) formed the subject-matter of a proceedings under Section 105, Ben. Ten. Act. In these proceedings the zamindar prayed for an assessment of fair and equitable rent. The tenants in those proceedings raised the same question of the existence of the custom. The Assistant Settlement Officer decided the question against the tenants. But the proceedings under Section 105 were for some reason or other dismissed.
3. In such circumstances can the decision of the revenue officer make the matter res judicata between these parties? No doubt the revenue officer had the power to decide the question and he decided it against the tenants. But against this decision the tenant could not appeal, for the case was decided in the tenant's favour and he could not appeal against the decision of an issue which had been decided against him when the final order on the whole proceedings was in his favour.
It is the decision of the revenue officer in the proceedings which has the effect of a civil Court decree and his decision in these proceedings was that the application be dismissed. Neither so far as the decision of the proceedings was concerned was it necessary to decide the question regarding the custom. Obviously not; for although the decision of the issue was against the tenants the final decision was in his favour.
4. I do not think that Section 109-A contemplates that where the final decision is in a party's favour he may appeal against the decision of an issue which has been decided against him, which decision was not necessary for the purposes of finally determining the matter. The learned Judge was therefore wrong in holding that the question whether there existed any such custom as alleged by the tenant was res judicata between the parties. It is quite clear that he decided these appeals on this point only and did not consider any other evidence there might or might not be. The decree of the learned Judge should therefore in my opinion be set aside and the case remanded to him to rehear and determine these appeals bearing in mind the above observation.
5. have lien to consider appeal No. 186. The Judge then seems to consider that the fact that no custom has been established with regard to other land of the estate is itself strong proof of the absence of the custom This holding lies within touji No. 275 and so apparently the Judge in coming to his finding was largely influenced by the fact that such a custom had not been proved for the other holding in touji No. 275. But that finding depended on an erroneous decision on the question of res judicata. It may be found, after considering the evidence, that such a custom does exist. The right course would seem to me to be to set aside the decree in this appeal also and let the Judge deal with it after he has decided the connected appeals in touji No. 275.
6. My learned brother, however, is of opinion that the appeal should also be dismissed. The result is under Section 98 that the appeal also stood dismissed with costs.
6. In my opinion these appeals should be dismissed. The issue that falls to be determined is whether a custom of haja exists in the locality in which the two touzis Nos. 274 and 275 are situate. That is an issue of fact, and the onus of proving the existence of the custom lay upon the tenant-appellants.
7. With respect to the appeals by the tenants of lands within touzi No. 274 I agree that the tenants have failed to prove that any such custom exists, and those appeals fail.
8. All the lands in respect of which the remaining appeals are preferred were held by the lower appellate Court to fall within touzi No. 275.
9. Now, before the present suits to recover arrear of rent were brought the jamas within touzi No. 275 (except the jama in appeal 186) were the subject-matter of applications for enhancement of rent under Section 105, Ben. Ten. Act, by the respondent landlords against the appellant-tenants or their predecessors-in-title. In those proceedings under Section 105-A an issue was raised, contested, and decided at the instance of the tenants with respect to the existence of the alleged custom of haja in the locality. The revenue officer found that inundations were prevalent in the district, but expressly held that no custom of haja was proved. Taking that circumstance into consideration the revenue officer came to the conclusion that it would be
a hardship on the tenants to allow any enhancement,
and that the existing rents were fair and equitable. The applications for enhancement, therefore, were dismissed.
10. In my opinion the fact that in the proceedings under Sections 105 and 105-A, the revenue officer found that the alleged custom did not exist was admissible and cogent evidence in the present suits to disprove the existence of the custom as against all the tenants of lands within touzi No. 275. The learned District Judge, however, went further, and (except in appeal 186) treated the question whether the alleged custom of haja existed in the locality as res judicata against the tenants in touzi No. 275.
11. In my opinion the decision of the learned District Judge was correct, and that it was not open to the tenants of lands within touzi No. 275 (except in appeal 186) to re-assert the existence of the alleged custom in the present suits. The finding that the custom of haja did not exist was the basis of the decision of the revenue officer that an enhancement of rent ought not to be allowed, and that the prevailing rate of rent was fair and equitable. To hold now that the custom existed would involve a fundamental alteration of the decision that the prevailing rent was fair and equitable. No appeal was preferred against that decision, and so long as the decision that the prevailing rent was fair and equitable remains in force and is to be treated as having the effect of a decree under Section 107, in my opinion, the finding that the custom did not exist in the locality is conclusive against the tenants who are bound by the proceedings under Section 105. Rajah Run Bahadur v. Mt. Lachoo Koer  11 Cal. 301; Dharani Mohan Roy v. Asutosh Mookerjee : AIR1924Cal907 : Sajjad Ahmad v. Trailakhya Nath : AIR1928Cal479 .
12. The appellants, however, contended that inasmuch as the landlord's application in the proceedings under Section 105 was dismissed the tenants could not appeal and, therefore, the findings and decisions of the revenue officer in those proceedings could1 not be res judicata against them.
13. Now, the provisions of the Bengal Tenancy Act are beset with difficulties and pitfalls, but it appears, to me that Section 105-A, which was inserted in the Act by Section 26, Act 1, 1907, was enacted to meet circumstances such as those which obtain in the present case. By Section 105-A it is provided that:
Where in any proceedings for the settlement of rents under4this part any of the following issues arise...(f) Whether the special condition and incidents of the tenancy or any right of way or other easement attaching to the land have not, or has not, been recorded, or have, or has been wrongly recorded, the revenue officer shall try and decide such issue, and settle the rent under Section 105 accordingly. By Section 107 it is provided that the decision of the revenue officer in every proceeding under Section 105, Section 105-A and Section 106, shall have the force and effect of a decree of a civil Court in a suit between the parties and subject to the provisions of Section 108 and 109A shall be final
and under Section 109 A
an appeal shall lie to the Special Judge from the decisions of a revenue officer under Sections 105 to 108A (both inclusive).
14. As I apprehend the matter the legislature intended and provided that when the incidents of a tenancy to which the Bengal Tenancy Act applied had been canvassed and determined in a proceeding under Sections 105 and 105-A, the decision of the revenue officer should be final, and should not be challenged except in an appeal as provided in the Act. In my opinion, notwithstanding the dismissal of the landlords application for enhancement of rent it was open to the tenants to appeal to the Special Judge under Section 109-A against the decision of the revenue officer that the custom of haja did not exist in the locality, and, as they did not elect to take that course for this reason also the issue relating to the custom of haja is now res judicata.
15. There is a further ground upon which I think that the appeals should be dismissed. The decision of the Revenue Officer on the issue of custom, even assuming that it did not amount to res-judicata, was cogent evidence against all the tenants of land within touzi No. 275 (including the tenant in appeal 186) that the custom did not exist:
and it certainly creates a paramount duty on the appellants to displace the finding, a duty which they have not been able to perform : per Lord Dunedin in Midnapur Zemindary Co. v. Naresh Narayan Rai A.I.R. 1922 P.C. 241.
16. As I understand the judgment of the learned District Judge the issue of fact whether the alleged custom of haja-existed was raised and contested, not only by the tenant in appeal 186, but by all the tenants who held lands within touzis No. 274 and 275; and although the learned District Judge decided that the issue of custom was res judicata in respect of the tenants who were bound by the proceedings under Sections 105 and 105-A., in considering appeal 186, the learned District Judge also decided and intended to decide that no such custom was proved to exist in the locality in which all the lands within, touzi No. 275 were situate. Indeed it was inevitable that he should do so, for there could be no custom confined to the tenancy in appeal 186. It is clear, I think, that the learned District Judge disposed, of the appeals in this manner because in considering whether the onus of proving the custom had been discharged he refers to the evidence that had been adduced on behalf of all the tenants in support of the alleged custom. He states that 'there are close on 700 tenancies within the estate,' that is, touzi No. 275, and then discusses the evidence relating to the custom of haja that had been adduced to prove its existence in the locality generally. Indeed, the hisab of 1251 upon which the tenants relied did not relate in any way to the jama in appeal 186, but was tendered to prove that the custom had prevailed in the locality for many years. In these circumstances I think that there is no reasonable ground for granting a remand in this case, or for disturbing the decree of the lower appellate Court and, in my opinion, all the appeals should be dismissed with costs.