1. This appeal has arisen out of a suit for confirmation of possession on declaration of plaintiff's Niskar right to the land in suit, which is eighteen cottas in area in two plots deser bed in the plaint. It is recorded in the settlement khatian to he in possession of the plaintiff's son and some other persons and liable to the payment of rent. This settlement was held at the instance of the defendant who purchased the Patni right in the Mouza, in which this holding is included, at a Patni sale. The defendant subsequently applied for settlement of fair and equitable rent under Section 105, Bengal Tenancy Act, and the rent was fixed by the Settlement Officer in an ex parte proceeding. Thereafter the defendant instituted a suit for recovery of rent in 1928 and subsequently the plaintiff instituted the present suit for a declaration of her Nishkar right to this land. The suit was dismissed in the trial Court but decreed in the Court of appeal below. The grounds urged in this appeal are, firstly that the proceedings under Section 105 operate as a bar to the present suit; secondly that the suit is barred by limitation and thirdly that the findings of the Court of appeal below in reference to the claim of Nishkar title are not sufficient to establish it.
2. The first point depends upon the provisions of Section 107, Bengal Tenancy Act, which lays down that:
In all proceedings under Section 105, the Revenue Officer shall adopt the procedure laid down in Civil Procedure Code, for the trial of suits, and his decision in every such proceeding hall have the effect of a decree of a civil Court in a suit between the parties, and subject to the provisions of Sections 108 and 115-C shall be final.
3. It is therefore contended that the Settlement Officer having decided that the holding in question is liable to the payment of the rent which was fixed by him, the present suit is barred. On the other hand it is contended for the respondent that inasmuch as the question whether the land is rent free, as claimed by the tenant, was not raised and was not in issue in the proceedings under Section 105 the decision in those proceedings therefore was no bar to the present suit. In support of the appellant's contention the case of Apurba Krishna Roy v. Shyama Charan Pramanik AIR 1920 Cal 253 is referred to; there, in proceedings under Section 105 the tenants actually appeared and claimed that the land was Nishkar, but subsequently they did not prosecute the defence and the application was ultimately decided ex parte. That case is distinguishable from the present case, inasmuch as in the present case there was no appearance at all and whereas in the previous case it may be said that there was an issue as to whether the land was Lakheraj or not because it was raised in the written statement. In the present case no such issue can be said to have been raised. Another case which has been cited for the appellant is the case of Prafulla Chandra v. Kshetra Lal Sinha : AIR1929Cal417 . This case was mainly decided on the question of fraud, but in the final paragraph of the judgment it was stated that the claim that the land Was Lakheraj was also barred by res judicata owing to the ex parte settlement of rent under Section 105, Bengal Tenancy Act. There was no reference in the judgment to Section 107, Bengal Tenancy Act, nor to any other decision, and there was no discussion as to the grounds on which their Lordships held that the suit was barred by res judicata. It is true that under Section 107 of the Act the decision under Section 105 has the force of a decree of a civil Court, but that does not make the decision res judicata on issues which have not been raised in the proceedings. It has been held that the principle of constructive res judicata cannot be applied in connexion with proceedings under Section 105, Bengal Tenancy Act, and of course Section 11, Civil P. C, would not apply in the case of such proceedings.
4. On behalf of the respondent the case of Kshetra Lai Sinha v. Prohlad Chandra : AIR1927Cal603 has been referred to; that case appears to be on all fours with the present case, though there is no reference to Section 107, Bengal Tenancy Act. The other cases which indirectly support the contention of the respondent that the suit is not barred, are Dharam Kanta Lahiri v. Gater Ali Khan (1903) 30 Cal 339-7 CWN 33, Priyarnbada Debi v. Priya Nath AIR 1926 Cal 822 and Nawab Bahadur of Murshidabad v. Ahmed Hosseain AIR 1917 Cal 850 although these decisions are really more concerned with Section 109 which is in one way wider than Section 107. It is urged that in the case of Priyambada Debt AIR 1926 Cal 822 reliance was wrongly placed upon the decision in the case of Parbati v. Toolshi Kopri AIR 1914 Cal 157, in which there was no decision under Section 106 inasmuch as the proceedings under Section 106 were dismissed for default and it was not a case of ex parte decision. However, there are passages in the judgment of the case of Priyambada Debi AIR 1926 Cal 822 which show that their Lordships were of opinion that where an issue was not actually raised and decided in proceedings under Section 105 there would be no bar to a subsequent suit on that issue. Their Lordships regarded eases of this kind as being covered by the decision in the case of Nawab Bahadur of Murshidabad AIR 1917 Cal 850. On behalf of the appellant the case of Sajjad Ahmad v. Trailakhya Nath : AIR1928Cal479 has been referred to, in which it was held that the finding of the Settlement Officer under Section 105 as to area and rent of the holding was conclusive in connexion with a subsequent claim to suspension of rent, but that was on the ground that the finding as to area and rent showed that there could have been no case for suspension of rent and his Lordship the Chief Justice held that,
the entirety of the original rent is in consistent, with and has been destroyed by the finding of the Settlement Officer.
5. In the course of his judgment his Lordships said,
it was contended that under Sections 105 and 107, Ben. Ten. Act, there was no estoppel or res judicata on the question of the right of the tenant to a suspension of rent. That is quite true . . . inasmuch as the right of suspension of rent was not a matter which was before the Settlement Officer who was concerned entirely with assessing a fair and equitable rent.
6. Thus this decision is against the contention of the appellant that the decision under Section 105 is res judicata as regards other issues which were not raised. We think therefore that the proceedings under Section 105 are not a bar to the present suit. The other points raised in this appeal are firstly that the suit is barred by limitation,' and secondly the findings as to the Lakheraj character of the land was not sufficient to establish that right. As regards the plea of limitation, it was raised but not pressed in the trial Court, possibly on the ground that the period of limitation was extended under Section 18, Lim. Act. In any case since the decision of the questions involves questions of fact, it cannot be raised at this stage. As regards the second point the lower appellate' Court has not expressly reversed the finding of the trial Court that the plaintiff failed to connect suit land with the land of the kabala of 1255 B. S. on which she based her claim that the suit land is nishkar and yet the learned Subordinate Judge appears to have based his decision that the entry in the Record of Rights has been rebutted partly on the existence of this kabala of 1255. It is clear however that his finding of long possession is independent of the kabala as is also the decision that the plaintiff or her predecessors had never paid rent and the subsequent reference to the kabala shows that though he did not expressly reverse the finding of the trial Court as to the kabala, he held that it referred to the land in suit for he says:
These two facts (i.e. long possession and nonpayment of rent) along with the ancient kabala, are sufficient to rebut the presumption of the Record-of-Rights and to establish the plaintiff's niskar title.
7. In the circumstances I think that the finding as to title are sufficient and this appeal is therefore dismissed with costs.
8. I agree.