1. This appeal has arisen out of a suit for recovery of rent for the years 1331 to 1334 B. S. at Rs. 6-9 15gds with cess at two pice per rupee, twenty-five per cent, damages, the total claim being Rs. 29-6-0. The suit was dismissed in the trial Court and also in the Court of appeal below, on the ground that the suit was barred under the provisions of Section 105, Ben. Ten. Act, read with Section 107 of the Act. The ground on which this appeal was urged was that the learned Subordinate Judge erred in law in his appreciation of the effect of the proceedings Under Section 105, Ben Ten. Act, and that the learned Judge ought to have held that the question whether the holding was rent-free was really decided in the previous case Under Section 105, Ben. Ten. Act, and therefore res judicata between the parties and cannot be agitated in any subsequent suit between the same parties. In this case the entry in the khatian was that the land was liable, to the payment of rent, whereas the defendant asserts that he held the land rent free from the time of his predecessors in title, on the assertion of lakheraj-right since 1237 B. S.
2. The proceedings Under Section 105 were ex parte and the Revenue Officer decided what was fair and equitable rent. The qustion as to lakheraj title of the tenant was not raised or discussed in those proceedings and we agree with the opinion of the learned Subordinate Judge who cited authorities in support of the proposition that an ex parte decision Under Section 105 of the Act does not bar a tenant from subsequently claiming niskar title. This is the only point which is raised in this appeal and is decided against the appellant. This appeal is accordingly dismissed with costs.
1. I agree.