MAHENDRA NATH SASMAL Vs. PROBAL CHANDRA MUKERJEE

JUDGEMENT

(1.) These two appeals arise out of two suits for rent which were decreed by the Trial Court but were dismissed on appeal. The suits were for two jamas, one being alleged to bear a rental of Rs. 19-3 and. the other of Rs. 3-3 and the claims were laid on the basis of the said rentals as the plaintiffs had previously obtained decrees at the said rates for the said two jamas. Subsequent to the said decrees the Record of Rights was published in which one jama of Rs. 15-10-5 gundas was recorded for both the holdings. The plaintiff then applied under Secs.10 and 106 of the Bengal Tenancy Act but the applications were dismissed far default. The Munsif dismissed the suits holding that Section 109 of the Bengal Tenancy Act is a bar to the maintainability of the claims The Subordinate Judge has reversed that decision and decreed the suits. Hence these appeals by the defendants.

(2.) It is contended on the authority of the decision of the Full Bench of this Court in the case of Bechgram Choudhuri V/s. Puran Chandra Chatterjee 89 Ind. Cas. 637 : 29 C.W.N. 755 : 41 C.L.J. 456 : A.I.R. 1925 Cas. 815 : 52 C. 894 that the suits for rent are foot entertainable by reason of the provisions of Section 109 of the Bengal Tenancy Act. That decision applied to the facts of these cases would support the position that notwithstanding the dismissal of the applications under Section 105 and 106, a Civil Court shall not entertain any application or suit concerning any matter which was the subject of these applications. A suit for rent is for relief against an alleged grievance which the plaintiff is entitled to institute under the general law. It is not concerning any matter which may form the subject of an application or suit under Section 105 or Section 106. It is true that in dealing with the defence in the present suit, the Court has to decide on matters which were the subject of the said application, but as was pointed out in the case of Rajendra Narain V/s. Kalim 87 Ind. Cas. 813 :49 C. 875 : 26 C.W.N 758 : A.I.R. 1922 Cal. 575 Section 109 is only a bar to the entertainment of an application or suit and not the entertainment of a defence to an action.

(3.) It is next contended that the orders dismissing the applications for default operate as a bar to the trial of the very same question in the present suits by reason of the provisions of Section 107 of the Act, but the short answer to this contention is that that section only makes the procedure as laid down in the C. P. C., for the trial of suits applicable to proceedings under Secs.105 and 106 of the Act, and as regards the decision in those proceedings operating as a decree, the orders purported to dismiss the application for default without there being, any adjudication on the merits and, therefore, do not amount to a decision; Parbati V/s. Tolsi Kopri 20 Ind. Cas. 1 : 18 C.W.N. 604 : 18 C.L.J. 128. The effect of pitch dismissal is to leave the Record of Eights as it was finally published, but the record creates no title in favour of anybody, and only raises a presumption as to the correctness of the entry therein to avoid which it is not necessary to institute a suit. The Record is always a rebuttable piece of evidence. In the present case, the learned Subordinate Judge has found that the entries ate incorrect and have been rebutted.