ROWLAND HUDSON Vs. MAHABIR TEWARI

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in a suit which was brought for rent. The point taken on behalf of the appellant is that there is an entry in the record-of-rights made by the Settlement Officer fixing the rents after he had decided a dispute between the parties raider Section 106 of the old Bengal Tenancy Act, that is to say, under Act VIII of 1885 as amended by Act III of 898. The appellant in. support of the proposition that decision by the Revenue Officer amount's to a decree operating as res judicata With respect to the present dispute between the parties relies on the case of Gokhul Sahu V/s. Jadu Nundun Roy 17 C. 721. In that case the Revenue Officer acting under Section 106 of the Bengal Tenancy Act had decided a dispute and had determined that, a particular land was mal land and liable to pay rent. The respondents have relied upon a Fall Bench decision in the case of the Secretary of State for India V/s. Nitye Singh 21 C. 38, and two other analogous cases as an authority for the proposition that the Revenue Officer had no jurisdiction to determine the validity of rent free titles set up by persons occupying lands within the area under enquiry so as to resume such lands and to declare them liable to settlement. Although that case does not in express terms overrule the earlier decision, yet the opinions expressed by some of the learned Judges must be regarded as weakening to a certain extent the earlier case; but I think the earlier case is distinguishable. In that, case the question as to the jurisdiction of the Revenue Officer does not seem to have arisen because, as appears from the judgment of the Court at page 725, the sanad, under which the Sahus, who were apparently the defendants in the case, claimed their title, if genuine, operated as a special contract and for which the Sahus would be liable to pay rent to the Roys and, therefore, the Sahus were tenants within the meaning of the Act according to their own case and the Revenue Officer, therefore, bad jurisdiction to enter the particulars of the land in suit in his record-of-rights. That being so, it does not appeal that the question of jurisdiction could have arisen and all that the Court had decided was that this order having been made, by the Revenue Officer in the circumstances, the matter did operate as res judicata; but the Court came to that conclusion apparently after very considerable hesitation.

(2.) The point taken is that, that case does not apply because the Full Bench case to which we have referred decides that the question whether lakheraj or not lakheraj is a question which a Revenue Officer is not competent to, decide and, therefore, in the case the decision of that question was outside the competency of the Revenue Officer, and the decision therefore, that he arrived at being without jurisdiction is not binding as res judicata in the, the question between the parties in the present suit. I think that that is the correct view. Then the plaintiff sues for (sic). The defendant sets up a lakheraj grant for the predecessor of the plaintiff. The plaintiff relies on the entry under Section 106 of the Bengal Tenancy Act and that entry appears; to me to come precisely within the four corners of the Full Bench case reported is the case of Secretary of State for India V/s. Nitye Singh 21 C. 38, which the Revenue officer had no jurisdiction to make. The case of Gokhul Sahu V/s. Jadu Nundun Roy 17 C. 721, is distinguishable because there the defendants were tenants within the meaning of the Act and the Revenue Officer was justified in making an entry regarding the land in suit. But here according to the defendants case there was no relation of and lord and tenant, and the defendants were holders of a rent free grant from the predecessors of the land?, lords many years ago, and I am bound to say that I feel somewhat pressed by what appears in the judgment of the Court of first instance and of the lower appellate Court and that is though this decision was given by the Revenue Officer many years ago, there is no evidence at all that it was ever acted upon and that rent has ever been paid in respect of the land to the plaintiff. In my view, for the reasons which I have stated the decision, given by the Revenue Officer cannot be regarded as deciding a dispute between the parties because it was a decision on a question which the Revenue Officer was, not empowered to decide.

(3.) The judgment and decree of the lower appellate Court are right and this appeal is dismissed with costs. Chatterjee, J.