1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Walmsley in a suit for arrears of rent.
2. The plaintiff-appellant instituted this suit against the defendants respondents for recovery of arrears of rent due in respect of a tenancy held at Rs. 3-9 per annum. The defendants contended that they were not liable as the tenure was rent free. This contention was overruled and the suit was decreed by the primary Court. On appeal, the decision was affirmed by the Subordinate Judge; The judgment of the ,tow Courts went against the defendants on the ground that they were bound by a decree In a proceeding under Section 105, B.T. Act and that they had failed to establish what they had asserted, namely that the decree was made without jurisdiction. On appeal to this Court the defendants urged what they were not precluded by the provision of Section 109. B.T. Act from proving that they held the land rent free. This contention was accepted by Mr. Justice Walmsley and he remanded the case for enquiry whether the evidence proves that the defendants are liable to pay rent, and if so, at what rate. We are of opinion that this order cannot be supported.
3. It appears that the record of rights in this case was finally published on the 16th December, 1912. This record contained an entry to the effect that the defendants held the land without payment of rent, but that the land was liable to be assessed with rent. The landlord thereupon instituted a proceeding under Section 105, B.T. Act for assessment of fair rent. The tenants contended that they held the land rent free. Consequently the question contemplated by Section 105-A, Clause (a) arose namely, whether the land was or was not liable to payment of rent. It thereupon became incumbent upon the Revenue Officer to try and decide that issue and to settle rent under Section 105 if he should hold that the land was liable to payment of rent. It is not clear what took place before the Settlement Officer. But this much becomes obvious on an examination of the record of rights that on the 15th November, 1913 rent was assessed at the rate of Rs. 3-9 per annum. It has been stated that this order was made by consent of parties; but that is immaterial for our present purpose, because under Clause (6) of Section 105, where the parties agree amongst themselves by compromise or otherwise, as to the amount of the fair rent, it is incumbent upon the Revenue Officer to satisfy himself that the amount agreed upon is fair and equitable, and it is only if he is so satisfied that he can record the amount agreed upon as the fair and equitable rent; if he is not so satisfied, he has to settle a fair and equitable rent as provided in sub-sections (4) and (5), The real question is, what is the effect of such a decision by the Revenue Officer. The answer is furnished by Section 107. Sub-section (1) of 'that section provides that in all proceedings under Section 105, Section 105-A and Section 106 the Revenue Officer shall, subject to rules made by the Local Government, adopt the procedure laid down in the Code of Civil Procedure for trial of suits; and his decision in every, such proceeding 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 109-A, shall be final. Sub-section (2) next provides that a note of all rents settled under t Section 105 and of all decisions of issues or disputes under Section 105 A or Section 106 shall be made in the record of rights finally published under Sub-section (2) of Section 103-A and such note shall be considered as part of the record. This was done in the present case. Section 108 provides for revision of the order of the Revenue Officer and Section 109-A provides for a first appeal to the Special Judge and a second appeal to the High Court. In the case before us, there is nothing to indicate that the decision of the Revenue Officer was challenged by way of either a first appeal or a second appeal. The decision of the Revenue Officer consequently operated as a decree of a Civil Court in a suit between the parties, and it has the force and effect of a final decree which decides two vital elements of the relationship between the parties, first that the defendants hold the land subject to the payment of rent; and secondly, that the fair rent payable is Rs. 3-9 annas annually.
4. But Section 109 has been invoked in order to show that it is open to the defendants to raise by way of defence the very question which was decided by the Revenue Officer under Section 105. In our opinion Section 109 has no application to a case of this description. That section provides that, subject to the provisions for an appeal, a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Sections 105 to 108 both inclusive. This does not whittle away the effect of Section 107, and applies to cases where no decision has been pronounced by the Revenue Officer concerned. The decision in Rajendra v. Narain Shaikh Kalim A.I.R. 1922 Cal. 575 does not affect the present question and was pronounced under entirely different circumstances; there the objection was sought to be raised by way of defence in a suit instituted before the publication of the record-of-rights. Nor is the matter affected by the decision of the Judicial Committee in Gokal Mandar v. Padmanand Singh  29 Bom L.R. 793 It is not necessary for us now to consider whether it is or is not possible for the defendants. to get rid of the decision of the Revenue Officer which operates as a final decree. This much is incontrovertible that under Section 107 so long as that decree remains in force, effect must be given to it, and, if effect is given to it, there is no escape from the conclusion that the claim for rent must be decreed on that basis.
5. The result is that this appeal is allowed, the decree of Mr, Justice Walmsley set aside and that of the Subordinate Judge restored with costs of two hearings in this Court.