SUSAMARANI DEBI Vs. UDAI CHAND MAHATAB

JUDGEMENT

(1.) On behalf of the defendants, it is urged that the court of appeal below erred in holding that the defence was barred under Section 109, Bengal Tenancy Act. The plaintiff had brought the suit to realise arrears of rent, cess and interest in respect of a holding of which the rent had been settled under Section 105, Bengal Tenancy Act. The order passed under Section 105 was in 1937 and the present claim is for the years 1347 to 1350 B. S. The defence was that no rent was payable for the land as the plot in question was a resumed chowkidari chakran land and had been included in the putni created in 1846. The putni rent included the rent of these lands and the tenants are not liable to pay separately any rent for the same. Both the courts below have held that as rent was assessed under Section 105, Bengal Tenancy Act, and the order passed by the revenue authorities (a copy of which is marked as Ex. 6 in the case) was a contested one, that decision had the force and effect of a decree of civil court under Section 107, Bengal Tenancy Act. The defendant is not entitled to urge in the present suit any ground which he could have and ought to have raised in the proceedings under Section 105, Bengal Tenancy Act.

(2.) The only paper produced to show what was raised or decided before the revenue authorities during the proceeding under Section 105 is the copy of the order already referred to. It appears from that order that two points were raised, one was an objection grounded on an allegation that the lands were situate in two mouzas and the other as to the basis for the calculation to fix the reasonable rent. No question appertaining to the particular point now raised in the present suit appears from the order Ex. 6. During the preparation of the final record of rights these lands were recorded as lands liable to be assessed with rent. A question might have been raised as to whether the land was niskar or not or that rent was at all payable or not under other considerations. If so, then proceedings could have been started under Section 105A, Bengal Tenancy Act, and a decision arrived at. What is decided in a proceeding under Section 105 is to be looked at simpliciter and it is not open to the court to introduce or apply principles of constructive 'res judicata'. The courts however have gone so far as to lay down that if a particular objection is actually raised before the revenue authorities in proceedings under Section 105, the fact that there is no reference to such objections in the order as passed would not stand in the way of the Court in a subsequent proceeding holding that such points as were raised were given up and such points would not be allowed to be raised in any future suit. -- 'Apurba Krishna v. Shyama Charan', 24 Cal WN 223. As stated already, the only paper produced by the landlord in support of the bar raised against the defendant is a copy of the order passed under Section 105. As there is no indication from that order that the matter which is now in issue was even raised, not to speak of being decided by the revenue authorities, it cannot be held that the matter now in dispute was the subject-matter of a decision under Section 105, Bengal Tenancy Act. -- 'Nawab Bahadur of Murshidabad v. Ahmad Hossein', 25 Cal LJ 556. The courts below were therefore not correct in holding that the defendants are not entitled to urge the defence raised here.

(3.) With regard to the defence as to whether the zaminaar is entitled to claim any rent for land now in suit, reference is to be made to the engagement between the parties. In 1846 the pocta and the kabulyat which were exchanged clearly mentioned that all the lands included within particular mpuzas, were being settled and the putni rent which was being fixed was in respect of all such lands. It is not a general statement that all the lands within the mouza are being settled but particular kinds of properties held by the zamindar are mentioned, chowkidari chakran lands being one of the different types of land so specifically mentioned.