SRIMATI PRIYAMBADA DEBI Vs. PRIYA NATH BANERJEE

JUDGEMENT

(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 Secs.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/s. 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/s. 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".