1. The four suits from which the present appeals arise were brought by the plaintiff tenants against the defendant-landlord for a declaration that they were lakherajdars in respect of the lands in suit, and for a further declaration that the lands did not appertain to the jama as alleged by the defendant, and that the decisions of the Revenue Officer were not binding upon them. It appears that during the settlement proceedings these holdings were recorded in the Record of Rights as rent paying, and liable to assessment of rent.
2. Thereafter the defendant applied under Section 105, Bengal Tenancy Act, to have fair and equitable rent settled in respect of these holdings. The plaintiff-tenants did not appear in those proceedings which were decided ex parte against them. The result of those proceedings was that the lands were included as mal lands in the holdings in suit. Thereafter the defendant brought suits for rent against the plaintiffs which led to the institution of the present suits. These suits have been decreed by both the lower Courts and the defendant appeals.
3. Two grounds have been urged by the learned Vakil on behalf of the appellant. Firstly, it is argued that the suits are not maintainable in view of the provisions of Sections 105 and 109 of the Bengal Tenancy Act. With reference to this contention, it is urged that as the defendant applied under Section 105, Bengal Tenancy Act, and decrees were passed upon that application, it must be taken that the question as to whether the holdings were liable to assessment of rent was necessarily raised and decided by the Revenue Officer. In view of the decision in Parbati v. Toolsi Kapri 20 Ind. Cas, 1 : 18 C. W. N. 604 : 18 C. L. J. 128, it was not maintained that the order passed by the Revenue Officer was a decision within the meaning of Section 107, but it is urged that the question as to whether defendant's holding is rent-paying or rent-free, is a matter which has already been the subject of an application made under Section 105, Bengal Tenancy Act. This question does not require a very elaborate consideration, as it is settled by previous decisions of this Court. In the case of Nawab Bahadur of Murshidabad v. Ahmad Hossain 35 Ind. Cas 695 : 44 C. 783 : 25 C. L. J. 556 : 21 C. W. N. 1004, the facts were similar to these. In that case the plaintiff brought a suit for declaration that he had mourashi mokrrari raiyati holding under the defendant whereas these holdings were recorded erroneously in the settlement record as rent-paying tenures and the decree against them under Section 105, Bengal Tenancy Act, was obtained by collusion and suppression of notices and was, therefore, void. The same plea on behalf of the defendants was raised in that case as in the present case, namely, that the suit was barred under Section 109 of the Bengal Tenancy Act. In overruling the objection the learned Judges observed: 'To attract the operation of Section 109 of the Bengal Tenancy Act, it is essential to establish that the civil suit has for its subject a matter which has already formed the subject of an application under Section 105.... It is plain that in so far as the plaintiffs seek for a declaration that, they are mourashi mokarrari raiyats and not tenure-holders and that the lands held by them constitute not one tenure but distinct raiyati holdings, the suit is clearly maintainable. These matters did not form the subject of determination under Section 105. Indeed, the Settlement Officer had enquired into the point at an antecedent stage, namely, when the Record of Rights was under preparation. The only matter for investigation in the proceedings under Section 105 was the question of fair and equitable rent of the lands shown in the Record of Rights as held by the tenants as a tenure under their landlords. But in so far as the plaintiffs seek a declaration that the defendant is not entitled to realise Rs. 84 as rent in respect of the land in suit, the suit is clearly barred by Section 109, for this question directly relates to a matter which had formed the subject of the application under Section 105'.
4. The scope of the plaintiff's suit is for a declaration that the entry in the Record of Rights describing their holding as liable to assessment of rent is wrong. This was a matter which was certainly not before the Revenue Officer or the subject of any application made before him, when he decided the case under Section 105 The application that was made before the Revenue Officer was undoubtedly on the basis of the Record of Rights. But it did not invite the Revenue Officer to determine the issue as to whether the lands in suit were rent-free or rent-paying. It is argued on the authority of the Full Bench decision in Becharam Choudhuri v. Puran Chandra Chatterji 88 Ind. Cas. 637 : 41 C. L. J. 456 : 29 C. W. N. 755 : A. I. R. 1926 Cal, 845 : 52 C. 894, that the matter which though not directly the subject-matter of an application before the Revenue Officer under Section 105 but indirectly or impliedly involved in the determination of that application should be taken as a matter which was the subject of the application made before the Revenue Officer. We do not agree that the Full Bench decision intended to give such a wide meaning to the words of Section 109 which have been characterised in that decision as plain words of the section. The point before the Full Bench, was whether the matter which was the subject of an application before the Revenue Officer could form the subject of a suit, when the application before the Revenue Officer failed on account of non prosecution or for other reasons, though there was no decision by the Revenue Officer upon that application. On the point raised before the Full Bench it was decided that irrespective of the fate of the application before the Revenue Officer the same matter could not form the subject of a subsequent suit. Reliance has been placed in support of the view urged on behalf of the appellant on the decision in the case of Apurba Krishna Roy v. Shyama Charan Paramanik 54 Ind. Cas, 952 : 24 C. W. N. 223, But the facts of that case are different from those of the present case. There an application was made under Section 105 by the landlord for settlement of fair rent and the tenants appeared and objected to the plaintiff's claim on the ground that the property was niskar lakheraj of the defendants; but they did not prosecute the defence and the application was ultimately decided ex parte, in favour of the landlord. The learned Judges held that the decision of the Revenue Officer, though ex parte, was in the circumstances of that case a decision under Section 105, Bengal Tenancy Act, and in coming to that conclusion they referred to the proceedings before the Revenue Officer and his judgment in the case. In the case before us neither the proceedings nor the orders of the Revenue Officer have been produced. The only paper placed before us and produced on behalf of the defendant in the case is the Tabular Statement of the result of the proceedings before the Revenue Officer, which is said to be the decree passed in accordance with Section 105, Bengal Tenancy Act. That paper simply shows the amount of rent fixed in respect of the holding. We are, therefore, in ignorance as to the real issue raised before the Revenue Officer. Presumably the issue as to whether the lands were rent-paying or not could not have been raised because it was an ex parte proceeding and the plaintiff's suit was based upon the Record of Rights in which the holdings were recorded as being liable to assessment of rent. In Apurba Krishna's case 54 Ind. Cas, 952 : 24 C. W. N. 223, after holding that the order of the Revenue Officer was a decree within the meaning of Section 107, the learned Judges proceeded to point out that the suit in that case was also barred under Section 109, Bengal Tenancy Act, and the reason they assigned for the view is that the tenants appeared before the Revenue Officer and raised the issue by their defence, and therefore, it must be taken that that issue was the subject of the application before the Revenue Officer. That case, however, does not support the view urged by the appellant. As we have observed, the present case is covered by the decision in Nawab Bahadur of Murshidabad v. Ahmad Hossain 35 Ind. Cas 695 : 44 C. 783 : 25 C. L. J. 556 : 21 C. W. N. 1004, and we are not disposed to differ from that decision.
5. This point does not arise in Title Suit No. 746 of 1921 from which S. A. No. 2078 of 1923 arises.
6. It is argued in the second place on behalf of the appellant that the Courts below have admitted certain documents which were inadmissible in evidence. Therefore, the conclusion that defendant's holdings are rent-free is based upon matters which are not in evidence in the case. The documents objected to are certain Kobalas, mortgage-deeds, two partition decrees, etc., which were not inter partes; and, therefore, it is urged, they are not admissible in evidence against them. This contention has no value, as these documents are admissible under Section 13, Evidence Act, and in them the plaintiffs and the predecessors of the plaintiffs claimed the lands in suit to be lakheraj. In some cases the learned Judge has used the documents in favour of the plaintiffs but observed that their value must be very little. In others, the learned Subordinate Judge has relied upon these documents coupled with other evidence in the case in support of his view. In second appeal we are not able to define the amount of weight to be attached to the evidence and we find that in these cases there are other important pieces of evidence which together with the evidence afforded by these documents; was sufficient for the lower Court to arrive at its finding. This ground, therefore, also fails.
7. Lastly it is said that the decree passed by the Trial Court and upheld by the lower Appellate Court should be modified, inasmuch as it declared that the order passed under Section 105, Bengal Tenancy Act, by the Revenue Officer was not binding upon the plaintiffs. This contention must be upheld. The plaintiffs are not entitled to have a declaration that the order passed by the Revenue Officer was inoperative, for in that case the suit would involve a matter which was the subject of the application before the Revenue Officer, and it has been so held in the case of Nawab Bahadur of Murshid-abad v. Ahmad Hossain 35 Ind. Cas 695 : 44 C. 783 : 25 C. L. J. 556 : 21 C. W. N. 1004,
8. The learned Judges there pointed out the anomalous position of the parties by virtue of two decisions in favour of either party; but they held that the plaintiffs were not entitled to any declaration in respect of the decree of the Revenue Officer.
9. The result, therefore, is that these appeals fail; but the decree of the Trial Court will be modified by expunging from it the words relating to the declaration that the order passed under Section 105, Bengal Tenancy Act, is not binding upon the plaintiffs.
10. In the circumstances of these cases we order that each party should bear his own costs except in Appeal No. 2078 of 1923 in which the respondents are entitled to their costs.