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Priyambada Debi v. Priya Nath Banerjee
Factual and Procedural Background
Four suits were brought by plaintiff-tenants against a defendant-landlord seeking declarations that (1) they were lakherajdars with respect to the lands in suit, (2) the lands did not appertain to the jama as alleged by the defendant, and (3) the decisions of the Revenue Officer were not binding upon them. During settlement proceedings, these holdings had been recorded in the Record of Rights as rent-paying and liable to assessment of rent.
The defendant subsequently applied under Section 105 of the Bengal Tenancy Act to have fair and equitable rent settled for the holdings. The plaintiff-tenants did not appear in those Section 105 proceedings, which were decided ex parte against them; the results, as presented, show the lands included as mal lands in the holdings in suit. Following those proceedings, the defendant brought suits for rent against the plaintiffs. The plaintiffs' suits (seeking the declarations noted above) were decreed by both lower Courts; the defendant appealed against those decrees, producing the present appeals arising from the four suits.
The courts below admitted certain documentary evidence (kobalas, mortgage-deeds, partition decrees, etc.) and reached findings that led to decrees in favour of the plaintiffs; these decrees are the subject of the appeals.
Legal Issues Presented
- Whether the plaintiff-tenants' suits are maintainable in view of Sections 105 and 109 of the Bengal Tenancy Act, given that the defendant had pursued proceedings under Section 105 to settle fair rent.
- Whether the decision (or decree) of the Revenue Officer under Section 105 is binding on the plaintiffs and thereby bars the plaintiffs' suit (i.e., the extent to which a matter that was the subject of an application under Section 105 precludes subsequent suit under Section 109).
- Whether certain documents admitted by the lower Courts (kobalas, mortgage-deeds, partition decrees, etc.) were inadmissible as evidence because they were not inter partes, and if so, whether the impugned decrees must be set aside for want of admissible evidence.
- Whether the Trial Court's declaration that the order passed under Section 105 of the Bengal Tenancy Act was not binding upon the plaintiffs was permissible, or must be expunged from the decree.
Arguments of the Parties
Appellant's (Defendant's) Arguments
- The suits are not maintainable because, after the defendant applied under Section 105 and decrees were passed in those proceedings, the question whether the holdings were liable to assessment of rent had already been raised and decided by the Revenue Officer; accordingly Section 109 bars the suits.
- Reliance on precedent (for example Parbati v. Toolsi Kapri) to support the contention that matters decided in Section 105 proceedings cannot be the subject of subsequent civil suits.
- The lower Courts admitted documents (kobalas, mortgage-deeds, partition decrees, etc.) which were not inter partes and thus inadmissible; the conclusion that defendant's holdings are rent-free is therefore based on matters not properly in evidence.
- The Trial Court's declaration that the Revenue Officer's order under Section 105 was not binding on the plaintiffs should be set aside or modified.
Plaintiffs' (Respondents') Position as Reflected in the Opinion
- The plaintiffs sought a declaration that the entry in the Record of Rights describing their holding as liable to assessment of rent was wrong; that form of relief concerns the correctness of the Record of Rights entry and, as presented to the court, was not the subject-matter of the Revenue Officer's proceedings under Section 105.
- The plaintiffs challenged the binding effect of the Revenue Officer's order and sought a declaration that the order was not binding upon them (a declaration which the court ultimately held was not permissible and ordered expunged).
- The plaintiffs relied on documentary evidence (including certain kobalas and partition decrees) and other evidence; the courts below treated those documents as admissible (under Section 13 of the Evidence Act) and attached some weight to them in conjunction with other evidence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Parbati v. Toolsi Kapri, 20 Ind. Cas. 1 : 18 C. W. N. 604 : 18 C. L. J. 128 | Cited by appellant to support the proposition that matters raised in proceedings under Section 105 should preclude subsequent civil suits; used in discussion of whether a Revenue Officer's order constitutes a decision relevant to Sections 107/109. | The Court noted the citation but proceeded to rely on later and more directly applicable authorities (notably Nawab Bahadur of Murshidabad v. Ahmad Hossain) in reaching its conclusion; the Court did not rest its decision on Parbati. |
| Nawab Bahadur of Murshidabad v. Ahmad Hossain, 35 Ind. Cas. 695 : 44 C. 783 : 25 C. L. J. 556 : 21 C. W. N. 1004 | Held that where a plaintiff seeks declaration as to the nature of his tenure (e.g., mourashi mokarrari raiyati vs. tenure-holder) and the question was not the subject of determination under Section 105, the suit is maintainable; but a declaration attacking the rent fixed by the Revenue Officer may be barred by Section 109. | The Court treated this decision as directly on point, applied its distinction between matters properly before a Revenue Officer under Section 105 (fair rent) and distinct title/tenure questions, and held the present case covered by this decision; the Court followed its reasoning and did not differ from it. |
| 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 | Full Bench decision cited for the proposition that matters indirectly or impliedly involved in determination of a Section 105 application may be treated as matters that were the subject of that application. | The Court declined to accept so wide a reading of Section 109 as attributed to this Full Bench decision. It observed that the Full Bench addressed a different question (whether a failed application could preclude a later suit) and did not intend the broad interpretation urged by the appellant in the present case. |
| Apurba Krishna Roy v. Shyama Charan Paramanik, 54 Ind. Cas. 952 : 24 C. W. N. 223 | Held that where tenants appeared before the Revenue Officer and raised a defence (e.g., that the property was niskar lakheraj), an ex parte decision could still be a decision under Section 105 and thereby bar subsequent suit under Section 109. | The Court distinguished that case from the present facts: in Apurba Krishna the tenants had appeared and raised the issue before the Revenue Officer; in the present case the proceedings and orders were not produced and the plaintiffs did not appear, so the precedent did not support the appellant's contention. |
Court's Reasoning and Analysis
The Court addressed the appellant's contentions in the order urged by the appellant.
1. Concerning Sections 105 and 109 of the Bengal Tenancy Act, the Court began by identifying the precise subject-matter of the plaintiffs' suits: a challenge to the Record of Rights entry that described their holdings as liable to assessment of rent (i.e., a declaration that the entry was wrong). The Court emphasized the distinction, drawn in Nawab Bahadur of Murshidabad v. Ahmad Hossain, between (a) inquiries properly within Section 105 proceedings (the question of fair and equitable rent as based on the Record of Rights) and (b) distinct questions about the nature of tenure or the correctness of the Record of Rights entry (which may not have been and are not necessarily the subject of the Section 105 proceedings).
2. The Court examined the factual position of the Section 105 proceedings in this case: the plaintiffs did not appear, the only paper produced on behalf of the defendant was a Tabular Statement showing the amount of rent fixed, and neither the proceedings nor the Revenue Officer's orders had been produced. Because the application to the Revenue Officer was made on the basis of the Record of Rights (which described the holdings as rent-paying), the Court concluded the Revenue Officer's proceeding did not necessarily raise or decide the preliminary question whether the holdings were rent-free. The Court therefore found that the plaintiffs' claims about the character of their tenure had not been previously determined by the Revenue Officer in a manner that would bar the civil suit under Section 109.
3. The Court considered Full Bench authority (Becharam Choudhuri) and other decisions relied upon by the appellant, and explained that those authorities did not support the broad proposition that any matter indirectly relevant to a Section 105 determination is thereby taken to have been the subject of the application. The Full Bench decision had addressed different circumstances (e.g., applications that failed for non-prosecution), and Apurba Krishna Roy was distinguished on its facts because, in that case, the tenants had appeared and raised the issue before the Revenue Officer.
4. On the evidentiary contention, the Court reviewed the documents objected to (kobalas, mortgage-deeds, partition decrees, etc.) and held they were admissible under Section 13 of the Evidence Act because those documents showed that the plaintiffs and their predecessors had claimed the lands to be lakheraj. The Court acknowledged that some of the learned Judges below had treated the documents as of limited value, but found that, when combined with other important pieces of evidence present in the cases, they provided a sufficient evidentiary basis for the lower Courts' findings. The Court therefore rejected the contention that the judgments below were based on inadmissible evidence.
5. The Court accepted, however, that the Trial Court's declaration that the Revenue Officer's order under Section 105 was "not binding upon the plaintiffs" could not stand. The Court held that a declaration that the order of the Revenue Officer was inoperative would directly involve a matter which had been the subject of the application before the Revenue Officer, and under the precedent in Nawab Bahadur of Murshidabad v. Ahmad Hossain plaintiffs were not entitled to such a declaration. Accordingly, the Court ordered that the words of the decree relating to that declaration be expunged.
6. On costs and ultimate disposition, the Court described the practical result: the appeals fail, but the Trial Court's decree is to be modified by expunging the portion that declared the Section 105 order not binding; costs should generally be borne by each party, with a specific exception noted (Appeal No. 2078 of 1923).
Holding and Implications
Holding: The Court concluded that the appeals fail on the principal grounds argued by the appellant, subject to modification of the trial decree. More precisely:
Core Ruling: The appeals are dismissed, but the decree of the Trial Court is modified by expunging the portion declaring that the order passed under Section 105 of the Bengal Tenancy Act was not binding upon the plaintiffs.
Implications and direct effects:
- The plaintiffs' suits challenging the Record of Rights entries (asserting lakheraj status and that the lands did not appertain to the jama) remain maintainable, because those questions were not established as matters determined by the Revenue Officer under Section 105 on the material produced to the Court.
- The plaintiffs are not entitled to a declaration that the Revenue Officer's Section 105 order is inoperative or not binding; that part of the Trial Court's decree is expunged.
- Documentary evidence (kobalas, partition decrees, mortgage-deeds) was held admissible under Section 13 of the Evidence Act and, together with other evidence, sufficient to support the findings of the lower Courts.
- Costs: each party will bear their own costs except in Appeal No. 2078 of 1923, in which the respondents are entitled to their costs.
The opinion does not purport to lay down a novel precedent; it applies existing authorities (in particular Nawab Bahadur of Murshidabad v. Ahmad Hossain) to the facts before the Court and refines the application of Sections 105 and 109 to those facts. No broader or new legal principle beyond the application and clarification reflected above is announced in the text of the opinion.
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.
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