Renupada Mukherjee, J.
1. The facts involved in this appeal lie within a very narrow compass and there is no dispute about them. They may be briefly stated here : Loya Majhi, appellant 1 and deceased Bikran, predecessor-in-interest of appellants 2 and 3 of this appeal executed a sale deed in favour of one Bhola Nath Dutt, deceased predecessor of the respondents of this appeal on 19-10-1943, for a consideration of Rs. 250/-. An application forrestoration of the land, under the provisions of the Bengal Alienation of Agricultural Land (Temporary Provisions) Act, 1944 was filed before the Sub-Divisional Officer, Jhargram on 22nd February 1945by the vendors. The application purports to have been allowed on compromise on 3-5-1945 and the sale was converted into a complete usufructuary mortgage terminating on the last date of Chaitra, 1353 B.S. The transferee who was then alive moved the District Judge of Midnapore in revision under the proviso to Section 10 of the above Act for settingaside the order of the Sub-Divisional Officer but was unsuccessful. Against that order, the transferee moved the High Court but the High Courtheld that it had no jurisdiction to interfere. The judgment of the High Court is reported in the caseof -- 'Bholanath Dutta v. Laya Mahji : AIR1947Cal451 .
2. Thereafter the transferee Bholanath Dutt filedthe present suit in the Court of the Munsif of Jhargram for a declaration that the order was not binding upon him inasmuch as the compromiseorder in question was a fraudulent one obtained in the absence of the transferee by the transferors by practising fraud upon the Sub-Divisional Officerof Jhargram. The transferee died during the pendency of the suit and the present respondents who are his heirs were substituted in his place. Thesuit was contested by the defendants who are now the appellants before me.
3. The trial Court held that in view of the provisions of Section 10, Bengal Alienation of Agricultural Land Act (Act 5 of 1944), the suit is not maintainable and so that Court dismissed the suit. Inappeal the District Judge took a different view holding that Section 10 does not exclude the jurisdiction of the ordinary civil court to entertain the suit and so the lower appellate Court remanded the suit for trial on the merits. Against this order the defendants have come up in Second Appeal.
4. Mr. Ghose appearing on behalf of the appellants contended before me that the lower appellate Court was wrong in holding that the Civil Court was competent to try the suit and it should have held that Section 10 of the Act mentioned above specifically ousts the jurisdiction of a civil court in this matter. Section 10 runs as follows :
'10. Neither the High Court nor any Civil Court shall have jurisdiction in any matter which the Collector is empowered to dispose of under thisAct: Provided that any person who is dissatisfied with any order of the Collector made under Section 4 or Sub-section (1) of Section 8 may within thirty days from the date of such order apply in the prescribedmanner to the District Judge for the revision of such order and the decision of the District Judge thereon shall be final.'
5. Mr. Ghose further contended that the matter has been set at rest by the previous decision of the High Court reported in : AIR1947Cal451 , and that it cannot be agitated any more in a fresh suit.I am unable to accept this contention as sound. The matter which was agitated in the previous proceedings giving rise to the revisional applicationbefore the High Court was whether the order of the Sub-Divisional Officer converting the sale intoa complete usufructuary mortgage was a correct one or whether the order was liable to be set aside. This order was certainly passed by the Sub-Divisional Officer in consonance with the provisions of Section 8, Bengal Alienation of Agricultural Land Act, 1944 and so it could be challenged only in revision before the District Judge under the proviso to Section 10 of the Act. The main part of that section excludes the jurisdiction of Civil Courts and also of the High Court in such matters.
6. Mr. Mukherjee appearing on behalf of the respondents contended that the scope of the present suit is quite different from the scope of the previous proceedings because in this suit the transferee alleged that the order was obtained by the other side by practising fraud upon him and also upon the Officer who passed the order. I agree with Mr. Mukherjee that such matter does not come within the purview of Section 8 of the Act or under any other section. It is true that the compromise was challenged by the transferee before the District Judge. But that was only in an incidental manner. The only pertinent question which arises in connection with the maintainability of the present suit is whether the matter involved in this suit is one which the Collector or the Sub-Divisional Officer was empowered to dispose of under the provisions of the Bengal Act 5 of 1944. My answer to that question must be in the negative. That being so, I agree with the view of the lower appellate Court that the Munsif has jurisdiction to decide the suit and that the suit must be decided by him on the merits.
7. Another point raised by Mr. Ghose on behalf of the appellants is that the suit is barred by the principles of constructive 'res judicata'. In support of this contention Mr. Ghose relied upon some observations made by Ghulam Hasan, J. in the case of -- 'Mohanlal Goenka v. Benoy Krishna', : 4SCR377 . The observations to which my attention was drawn occur at p. 73 of the report. The question of 'res judicata' cannot, however, be decided at this stage of the suit because the copy of the order of the District Judge in the previous revision case is not on the record. In the absence of that order and also in the absence of other relevant papers bearing on the question of 'res judicata' I am not in a position to give my decision on this question. Certainly it will be open to the appellants to raise this issue in the trial Court when the suit is heard on the merits.
8. In the result, the appeal must fail. It is accordingly, dismissed.
9. Having regard to the circumstances of the case I direct that the parties will bear their own costs in this Court.
10. Leave to file an appeal under Clause 15, Letters Patent was asked for and refused.