1. This is an appeal by defendant 1 against the decision of the learned Subordinate Judge which affirmed the decision of the learned Munsif. Plaintiff sued for a declaration that he had a permanent right at a fixed rent to certain lands and for an order that defendant 1 should return to him the landlord's fee which the plaintiff had been ordered to pay under Section 26-J, Bengal Tenancy Act. Both Courts decided in favour of the plaintiff. Now the appellant seeks to have the finding that; the plaintiff holds a permanent tenure at a fixed rent set aside on two grounds. The first is that the learned Subordinate Judge held that a presumption arose in favour of the plaintiff under Section 5(5), Bengal Tenancy Act. The facts found are that there were originally two holdings under the same landlord, one of over 100 bighas and one of some 95 bighas which have subsequently been sub-divided into six different holdings. The learned Subordinate Judge states that the plaintiff's holding exceeds 100 bighas. It was argued that under Section 5 (5), the 100 bighaa must be held under one lease and that it is not sufficient if the area of the land held by the tenant under one landlord exceeds 100 bighaa unless those 100 bighas were leased to him under one lease. In my opinion, there is nothing in Section 5 (5), which supports the suggestion that the tenant must hold 100 standard bighas under one and the same title and the argument really amounts to asking the Court to add to the words of the section 'an area in any one of holding' of over 100 bighas. Therefore in my opinion the learned Sub-ordinate Judge was right in relying on the fact that the plaintiff held an area of more than 100 bighas under the same landlord.
2. The next point was that the learned Subordinate Judge erred in relying on Section 50, Ben. Ten. Act. He presumed that, as admittedly the rent remained the same for 50 years, the presumption was that it was a fixed rent. Now the argument was that; the learned Judge erred in relying on certain chittas filed by the plaintiff and arriving at a conclusion that the tenure had existed prior to the Permanent Settlement. The landlord produced documents which had been filed with the Collector for the preparation of Permanent Settlement in which they stated various tenures and tenancies held under them on which no mention is made of the jamas in suit. The plaintiff filed chittas of 1215 made by the then tenants which referred to previous chittas made before the date of the Permanent Settlement. It was argued that the tenants' chittas were inadmissible in evidence. In my opinion the documents produced by the landlords and the documents produced by the tenants stood on exactly the same footing. The mere fact that the landlord's documents have been filed in the Collectorate does not make hem any better evidence on their behalf; and if both sets of documents are rejected there was no evidence which would rebut the presumption under Section 50. In my opinion both sets of documents were admissible though made by the respective parties without notice to the other side under Section 13 and the learned Subordinate Judge was entitled under the law to draw the inference which he had done. His finding therefore that the holding existed before the Permanent Settlement is not one that can be upset in second appeal.
3. Now the next point was with respect to the landlords' fee paid by the plaintiff under an order of the Munsif on defendant 1's application under Section 26-J, Bengal Tenancy Act. It was argued that although the finding by the learned Munsif that the plaintiff had acquired an occupancy right is not res judicata, his order that the plaintiff should pay a sum equal to 20 per cent. of the purchase money, is res judicata and cannot be called in question in this suit. The plaintiff applied under Section 115, Civil P.C. to this Court against the order of the learned Munsif and the two learned Judges while dismissing the application as incompetent, observed that the plaintiff might file a suit for declaration of his title and for the recovery of his fees. There is no direct decision on this point, but in Srinath Bose v. Debendra Nath AIR 1933 Cal 24, Jack J. expressed the opinion that the fee could be recovered. In Joy Chandra Bhoumik v. Kali Kinkar Hath (1936) 41 CWN 149, M. C. Ghose J. observed obiter that the question of title after a decision by a Munsif under Section 26. J, Bengal Tenancy Act, was not res judicata, but the question of the amount payable as landlord's fee was res judicata. The actual question did not arise for decision because in the appeal before him there had been no order for the refund of the landlord's fee. The same learned Judge in Civil Revn. Nos. 70 and 71 of 1937 while dismissing the application under Section 115 with respect to an order passed under Section 26-J, added that the party could bring a suit for the purpose of recovering landlord's fee. Now, advice given from the Bench according to a decision by Sir George Rankin, does not give a right of suit which did not exist. At the same time such advice must be presumed to be in accordance with the Judge's view of the law. Therefore it seems to me that so far as the decisions go the matter is still open, but there is strong body of opinion in favour of the view that the landlord's fee can be recovered in a separate suit. The section says that the landlord may recover his fee by an application and under Section 11, Civil P. C, no question of res judicata arises unless there has been a suit. Therefore it appears that the Legislature by directing that an application should be made, intended that the decision of that application would not operate as res judicata. Their Lordships of the Judicial Committee have often pointed out that Section 11, Civil P.C., is not exhaustive, but where their Lordships have held that the doctrine applies beyond the limits of Section 11, their Lordships have always established that the decision in the proceedings in which they have held to be res judicata, were proceedings in which there was an appeal and in both oases emphasized the fact that there was an appeal to the Judicial Committee. Therefore it appears that apart from Section 11, no question of res judicata can arise in connexion with summary proceedings, unless of course the Legislature has made express provision on the point. It seems to me therefore that the matter, even in respect of the fee payable, was not intended by the Legislature to operate as res judicata. I am informed that the plaintiff has paid Rs. 2 which is payable in respect of the permanent tenure. I am of opinion therefore that the decree of the lower Appellate Court must be affirmed and this appeal dismissed with costs. There is a cross-objection which was not pressed, and it is dismissed, but without costs. Leave to file an appeal under the Letters Patent is granted.