1. In this case the Court of first instance held that there was a bar by res judicata, under Section 13, Civil Procedure Code, and also a bar under Section 109 of the Bengal Tenancy Act to the present suit.
2. On appeal to the District Judge the appeal was dismissed on the ground that the suit was not maintainable in the Civil Court. It is true that in coming to that conclusion the learned District Judge referred to a decision reported in Jogendra Nath Roy v. Krishna Promoda Dasi 12 C.W.N. 1032 : 8 C.L.J. 322, which does not appear to have any relevancy to the facts of the present case, because it appears from that decision that no proceedings had been taken under the provisions of Section 106 of the Bengal Tenancy Act. As a matter of fact, however, in the present case proceedings were taken under that section; and on the application of the defendant, to which, the plaintiffs gave their consent, an order was made recording the whole khewat as istimrari.
3. The plaintiffs now ask by suit to have it declared that the portion of the land which by the compromise referred to had been recorded as the istimrari of the defendant, in fact belonged to his hat. As the learned District Judge has not gone into the question of res judicata I do not propose to deal with the matter here. I think, however, that his decision that the suit is not maintainable is correct, on the ground that under Section 107 of the Bengal Tenancy Act the decision under Section 106 was final, and under Section 109 there is a bar to the jurisdiction of the Civil Court.
4. It has been alleged here (so far as I can see for the first time) that the compromise before the Settlement Officer was entered into by mistake. Bat there is no issue upon this head in the proceedings of the first Court; nor is there any reference to such alleged mistake made in any portion of the judgment. Had there been such a mistake as is alleged, the duty of the appellant was to apply to the Revenue Officer under Section 103 of the Bengal Tenancy Act.
5. The appeal is dismissed with costs.
6. I agree.