1. We are of opinion that the view expressed by the District Judge is correct. The Raja of Tipperah applied for the settlement of fair rent on certain lands, and the present plaintiffs, as tenants, admitted that they held certain lands liable to assessment; but they contended before the Settlement Officer that other lands claimed by the Raja as forming portions of his holding or taluq were held by them rent free, and were, therefore, not liable to assessment. On objections so taken, the Settlement Officer found that the rent of these other lands forming portions of the taluq had, on three previous occasions, been settled by the Revenue Officer and that, consequently, rents had been paid for them. Such a finding necessarily means that the objection taken that the lands ere held rent free was without any substance. The tenants have now brought this suit to have it declared that the lands were rent free and not liable to assessment.
2. The question arises, and the case has been so dealt with in the lower Court on appeal, whether the suit is barred as res judicata within the terms of Section 13, Civil Procedure Code. In the first place, it is clear that, within the terms of Section 9 of Act III (B.C.) of 1893, the order of the Settlement Officer in the Survey and Record of Rights under Section 106 of the Bengal Tenancy Act of 1885 as originally passed was a decree, and inasmuch as it was not appealed against, it was final, and there can be little doubt, having regard to the terms of the judgment delivered by that Settlement Officer, that the point now raised was considered and decided.
3. The learned Pleader, who appears for the appellants, first of all claims the right of suit under Section 106 of the Bengal Tenancy Act of 1885 as amended by Act III (B.C.) of 1898. But it is clear from the terms of Section 9 of the amending Act of 1898, which has been already referred to, that this amendment of Section 106 does not apply to the order of the Settlement Officer.
4. The learned Pleader next contends that, however that may be, the present suit is not barred, inasmuch as the order of the Settlement Officer was without jurisdiction. Now, the Settlement Officer had, in the case before him, to find whether the plaintiffs were tenants of the Raja within the terms of the definition given in the Bengal Tenancy Act. Undoubtedly, in respect of certain lands they were tenants, but they objected to the assessment of the lands which form the subject of the present suit on the ground that they held under a rent-free grant. The mere fact that they had taken this objection did not deprive the Settlement Officer of jurisdiction. It was the duty of the Settlement Officer to find whether any rent had been at any time paid for these lands so as to show that the claim of rent free was without foundation. Unless it could be so, it would be impossible for any Settlement Officer to proceed if an objection can, though such objection be manifestly groundless, be taken and it is clear from his proceedings that the Settlement Officer did consider these points and he did hold that in the three previous Settlements these particular lands had been assessed as rent-paying lands so as to defeat any title such as is now set up. We, therefore, confirm the conclusion arrived at by the lower Appellate Court and dismiss this appeal with costs.