1. This is an appeal on behalf of the plaintiff in a declaratory suit. The plaintiff alleges that on the 6th April 1898, a Record of Rights was finally published in which the rent payable by the tenant-defendant was stated to be Rs. 80-12-6, that subsequently the entry was altered on the 9th September 1899 to Rs. 258-2 0, and, that, later on, when he brought a suit for rent against the tenant with a view to recover rent at the higher figure mentioned, his claim was disallowed by the District Judge and finally by this Court on the 1st February 1904. It was held on that occasion that the alteration of the record had been made without authority, and that consequently the plaintiff was not entitled to realise rent at any rate higher than what was admitted by the defendant, namely, the rate as entered in the Record of Rights finally published on the 6th of April 1898. The plaintiff, therefore, commenced this action on the 29th May 1906 for a two-fold declaration, namely, first, that the alteration of the Record of Rights was made with jurisdiction and that the entry as it now stands is binding upon both the landlord and the tenant, and, secondly, that the original entry of Rs. 80-12-6 was obtained by fraud and does not bind the landlord. The Courts below have concurrently dismissed the suit. The District Judge has held in substance that, as in the suit for rent, the Record of Rights was found to have been altered without authority, that decision is binding upon the parties to this litigation; in this view, he has declined to determine, whether the alteration was really unauthorised. As regards the question of fraud, the District Judge has held that the plaintiff had failed to prove the allegation; but there is indication in the judgments of the Courts below that if there was any fraud, the fraud was committed with the connivance of the appellant.
2. The decision of the District Judge has been assailed before us on the ground that the matter is not res judicata and that the question, whether the record was altered without authority, is still open for consideration. In our opinion, this contention is well founded. As was explained by this Court in the case of Shibo Raut v. Baban Raut 35 C. 353 at p. 359 ; 7 C.L.J. 470 ; 12 C.W.N. 859 in order to establish the plea of res judicata the Court which decided the former suit must have been such a Court as would have been competent to try and decide not only the particular matter in issue, in the later suit but also the later suit itself in which the issue is subsequently raised. It was also pointed out by the Judicial Committee in the case of Gokul Mandar v. Pudmanund Singh 29 C. 707 at p. 717 (P.C.) 29 I.A. 196 ; 6 C. W.N. 825 ; 4 Bom. L.R. 793 ; 8 Sar. P.C.J. 323 'that under Section 13 of the Civil Procedure Code of 1882, a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit, unless the Judge, by whom it was made, had jurisdiction to try and decide, not only the particular matter in issue, but also the subsequent suit itself, in which the issue is subsequently raised.' Now, in the case before us, the suit for rent was tried by a Revenue Court. That Court was not competent to try the present declaratory suit. It is clear, therefore, that the decision in the suit for rent' does not operate as res judicata. This view is in accordance with the decision in the case of Gomti Kunwar v. Gudri 25 A. 138 ; A.W.N. (1902) 220. The question, whether the alteration was or was not unauthorised, is, therefore, still open for consideration.
3. It appears that the alteration in the Record of Rights, though not initialled, was made by a duly qualified officer and was based upon an order of the Board of Revenue. The Board appears to have acted under Section 104G, which was introduced into the Bengal Tenancy Act by Act III of 1898 B.C.; the new section came into force on the 2nd November 1898, and was shortly afterwards extended to Orissa. The real question in controversy between the parties is, whether under Section 104G, the Board of Revenue had authority to alter the record finally published on the 6th April 1898. It has been argued for the respondent that as the record had been finally published before Act III of 1898 B.C. came into force, no proceedings could be taken under Section 104G for the alteration of such record. In our opinion this contention is well founded. Section 104G provides that 'the Board of Revenue may, in any case under this part, on application or of its own motion, direct the revision of any Record of Rights or any portion of a Record of Rights, at any time within two years from the date of the certificate of final publication.' It is dear that the case in which such an action may be taken by the Board of Revenue must be a case under Part II of Chapter X as it was remodelled by Act III of 1898 B.C. Now, Section 7 of the Act lays down that Chapter X of the Bengal Tenancy Act as it stood in 1885 was completely repealed, and in lieu thereof, a new chapter was substituted. In the original Chapter X, there was no such division into parts, and it is impossible to say that the Record of Rights finally published on the 6th of April 1898 was a record under Part II of Chapter X of the Bengal Tenancy Act as altered by Act III of 1898 B.C. It is further plain from Section 9 of Act III of 1898 B.C. that 'every settlement of rent or decision of a dispute by a Revenue Officer under Section 104 or Section 106 of the Bengal Tenancy Act, 1885, before the commencement of this Act in respect of which no appeal has, before the commencement of this Act, been preferred to the Special Judge appointed under Section 108 of that Act, shall have the force and effect of a decree of a Civil Court in a suit between the parties, and shall be final.' Now in the case before us, no appeal had been preferred as contemplated by Section 9. Consequently, the effect to be attributed to the entry of the rent as settled in the Record of Rights published on the 6th April 1898 is that of a decree of a Civil Court in a suit between the parties. In view of this circumstance, it is impossible for us to hold that the Board of Revenue could proceed under Section 104G to alter an entry of this description. We are clearly of opinion that it was not the intention of the Legislature to apply Section 104G to records finally published before Act III of 1898 B.C. came into force. The alteration made on the 9th September 1899 was consequently unauthorised. In view of this conclusion, the prayer for the first declaration must be refused.
4. In so far as the prayer for the second declaration is concerned, the plaintiff is obviously not entitled to any relief. If we adopt the view of the District Judge that the alleged fraud has not been established, the plaintiff is not entitled to challenge the Record of Rights. If, on the other hand, a fraud has been committed with the connivance of the plaintiff, he is undoubtedly not entitled to invite a Court of justice to interpose actively in his favour with a view to extricate him from the difficulty in which he has placed himself.
5. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.