1. The plaintiffs bring this action against the defendants mainly for the recovery of possession of 44.79 acres of land stituated in Mauzas Bagada and Bahabalpur. Defendant 1 is the main contesting defendant and the issues that have been framed between the parties are quite clear. The plaintiffs claim that by virtue of a decision passed by the Revenue Court under Section 105-A of the Ben. Ten. Act, they are entitled to maintain the present suit for the ejectment of the defendants as a body. The defendants on the other hand contend that the proceeding under Section 105-A of the Ben. Ten. Act, affords the plaintiffs no right whatever to eject them from the lands in suit and that it is open to them to re-agitate and re litigate the same matter which was the subject-matter of dispute and decision under Section 105-A of the Ben. Ten. Act.

2. It is only necessary to state a few facts in order to assertain what is the point for our consideration and determination. The plaintiffs are a portion of a body of cosharesr who owned a certain mehal which in the year 1900 was not partitioned. Some of the cosharers of this mahal, in 1900, let out by an amalnama 400 acres to four persons of whom defendant 1 was one. That document, which is referred to as Ex. A, purports to let 400 accres of land for the purpose of reclamation and cultivation. The learned Judge finds that document was never acted upon and apparently in 1904 after partition proceedings had been commenced in 1901, a cosharer, other than the cosharers who made the grantor letting comprised in Ex. A, made a registered lease to two persons, one of whom was one of the grantees under Ex. A and one other person, his brother, named Najibulla. As I have said, the learned Judge has held that Ex. A was never acted upon and the two persons who held under the lease of 1904 were subsequently recorded at the Revisional Settlement as tenure-holders in respect of this land. The partition proceedings were not terminated until May 1909 and on 14th July, 1908 defendant 1 seems to have adopted, having regard to his present contention the peculiar coarse of purchasing the interests of the lessees under the lease of 1904. The title he now seeks to set up is not by virtue of this purchase but his right and title, if any created by the amalnama Ex. A. The lands in suit formed a part of the 302 acres originally demised by the registered lease of 1904, and these lands on final partition were allotted to the plaintiff's share. The plaintiffs were not parties to the granting the lease of 1904.

3. Having purchased the interest of the lessees in 1908, defendant 1 applied under Section 105-A of the Ben. Ten. Act, to have a fair rent assessed in respect of the lands demised by that lease. I should have observed that the land comprised in the demise created by the lease of 1904 was different in area to that comprised in Ex. A. Ex. A purports to let 400 acres while the land let by the lease of 1904 was 302 acres and the latter formed the subject-matter of the application by defendant 1 and his co-defendants under Section 105-A of the Ben. Ten. Act. That proceeding came before the Revenue Settlement Officer and the matter was hotly contested and litigated between the parties and in the course of the trial the issue was clearly raised and pressed, namely. What was the status of the defendants? In other words, were the defendants tenants holding under the plaintiff's? The plaintiffs were the cosharers other than the cosharers who had made the letting or grant contained in Ex. A and the lease of 1904. In that proceeding the Revenue Settlement Officer held that defendant 1 and his co-defendants were not the tenants of the plaintiffs. That decision was appealed from; and it came on appeal before the Special Judge; and the Special Judge, so far as that issue was concerned, affirmed the finding of the Revenue Officer. Thus now it is on record by a Court whose decree has the force and effect of a decree of the civil Court that defendant 1 and his co-defendants are not the tenants of the plaintiffs in respect of the lands in suit. The decision of the Special Judge was given in the year 1912.

4. In the year 1913, the plaintiffs instituted the present suit and the plaintiffs seek in effect nothing more than to recover possession of the lands from defendant 1 and his co-defendants who, by virtue of the decision under S. 105(A), are in no better position than mere trespassers; because it was held that the relationship of landlord and tenant did not exist as between the plaintiffs, on the one hand and the defendants on the other. The learned Judge before whom this case came on appeal, Mr. Allanson, has held, agreeing with the trial Court that the decision is barred upon the principle of res-judicata; and the learned Judge has further held that on the merits defendant 1 has no case. Having been beaten upon his title based on the assignment which he claims to have obtained in 1908, defendant 1 has now fallen back upon his title under Ex. A which was never acted upon by any of the parties to it. The learned Judge has overruled the defendant's contention and decreed the suit in favour of the plaintiffs.

5. We are not now concerned with the merits of the case. Mr. Boss who appears on behalf of the appellant, viz., defendant 1, has raised two legal issues for our determination: First of all he contends that the principle of res judicata, which has been held to be applicable by the learned Judge, has no application to the facts of this case having regard to the construction which he seeks to put upon Section 11 of the CPC. He further contends that the learned Judge was wrong on the merits in disregarding defendant 1's claim of title which was amply supported and justified by virtue of the decision in Nanda Kumar Howladar v. Ram Jiban Howladar(1) and also by a decision of their Lordships of the Privy Council. These are the two matters for our consideration. The first one is of great importance and we must consider it first, Mr. Bose's contention, shortly put is that the principle of res judicata does not apply because the Court which determined the issue under Section 105(A) of the Ben. Ten. Act was not a Court competent to try the issues raised in this suit and that therefore on the line of authorities cited the principle of res judicate does not apply. Two cases are referred to one is the decision in Dharani Konta Lahiri v. Gaber Ali Khan(2); and Mr. Bose strongly relies on this case; and apparently at first sight it would appear as if it was an authority in his favour. That case, which is a decision of the Full Bench of the Calcutta High Court, decided that Section 13 of the old CPC, was not inapplicable to proceedings under the Bengal Tenancy Act; and that, therefore a decision arrived at by the Revenue Settlement; Officer or by the Special Judge was not of necessity a decision which would not operate as re-judicata in subsequent civil proceedings. But the ratio decidendi of that decision is, as the learned Judges say that there is nothing in the Bengal Tenancy Act to show that the intention of the framers of that Act was to make a decision of the Revenue Settlement Officer or of the Special Judge final. We agree with that expression of opinion so far as the law then was. This decision was given under the Bengal Tenancy Act as it stood prior to the year 1898. In the year 1898 material changes were made in the wording of Section 107 of the Ben. Ten. Act. It is clear from the wording of the new section that the words “shall be final” were imported into that section with a view to give finality to a decision arrived et by the Revenue Court or by the Special Judge on appeal. So that the amending enactment in the year 1898 supplies what was lacking at the time when the decision of the Full Bench in Dharani Kanta Lahiri v. Gaber Ali Khan was given. What their Lordships in that case held to be necessary to exclude the application of Section 13 of the old CPC, was incorporated in the Bengal Tenancy Act by the amendment of 1898. Therefore the case of Dharani Kanta Lahiri v. Gaber Ali Khan appears to us to afford no authority in support of Mr. Bose's contention in this case. Reliance is also placed upon a decision of their Lordships of the Privy Council in Gohul Mandar v. Pudmanund Singh(3). At p. 715 their Lordships draw attention to the law as it then stood with regard to the application of Section 13 of the old CPC; and their Lordships indicate that a decision of the Revenue Settlement Officer is not necessarily a decision which operates as res judicata in a subsequent civil proceeding. The observation of their Lordships is more in the nature of an obiter dictum than an express decision; but it is quite clear that at the time when their Lordships made the observation referred to, the law as I have said was essentially different to what it is now; and, therefore, the observation of Lord Davey does not seem to be applicable to the law as it now prevails. We have to construe the Bengal Tenancy Act as we find it to day in the light of the facts of this particular case.

6. Now, S. 105(A) is a new section and jurisdiction is given by this section to the Revenue Court to decide, amongst other matters whether the relationship of landlord and tenant exists between the parties applying to the Revenue Court for relief. Defendant 1 and his co-defendants applied to the Revenue Settlement Officer seeking to have a fair rent assessed upon the lands in suit on the basis of the existence of the relationship of landlord and tenant. The Settlement Officer held that no such relationship did in fact exist between the plaintiffs and defendant qua the lands sought to be recovered in this suit; and that decision was maintained on appeal. Now, S. 107, is the next section to be consideration. The section is important in that it has been twice amended: once in 1898 and again in 1907. The material amendment so far as this case is concerned is that made in 1898; and that section as it now reads provides that a decision of the Revenue Officer or the Special Judge shall have the force and affect of a decree of the civil Court between the parties and subject to the provisions of Ss. 108 and 109, “shall be final.” We consider that the effect of this enactment as amended is to bar for all time the possibility of raising any issue which was once settled in a dispute under Section 105(A) of the Ben. Ten. Act between the same parties and to make it incapable of being re-opened and incapable of being challenged. S. 109 is worthy of consideration in support of this view because that section enacts that a plaintiff shall not institute any proceeding, suit or application, touching and concerning any matter decided under Section 105-A, or similar sections, of the Bengal Tenancy Act.

7. When a plaintiff is debarred from instituting any proceeding touching or concerning any matter decided under S. 105(A), why should a defendant be allowed by way of defence to reopen any issue which was the subject matter of decision in a proceeding under Section 105(A) of the Ben. Ten. Act? In my opinion it would be an anomaly to debar a plaintiff from instituting any proceeding or application touching or concerning any matter which was decided under Section 105(A) of the Ben. Ten. Act; and at the same time to allow the defendant to raise by way of defence an issue which was finally decided by the Revenue Court or Special Judge on appeal under S. 105(A). Therefore, we must hold that Section 107 of the Ben. Ten. Act operates as a bar between the parties and that the defendant cannot now be allowed to raise an issue as a defence to this suit which was raised and determined in the proceeding instituted under Section 105(A) of the Ben. Ten. Act. It is contended that this view is inconsistent with the provisions of Section 11 of the present CPC. That may be so; but we think that the modern Bengal Tenancy Act was framed and amended distinctly for the purpose of excluding the application of Section 11 of the CPC, to cases within the provisions of Section 105(A) of the Ben. Ten. Act. The test is: can these two enactments stand together and be read together consistently? It is quite impossible to read Section 11 of the CPC, with the Bengal Tenancy Act, having regird to the provisions of Sections 107 and 109 of the latter Act. The learned vakil appearing on behalf of the respondents had some difficulty in admitting the proposition that Section 11 of the CPC, was excluded in its application to the provisions of the Bengal Tenancy Act. I do not see why he should have been so timid in admitting this proposition. Indeed I do not think that he admitted it at all in the ordinary sense. He rather contended that the effect of S. 107 was really to give the Revenue Court the status and jurisdiction of a civil Court for the purpose of giving it the character of a Court of competent jurisdiction within the meaning of Section 11 of the CPC. We do not think that this contention is well founded.

8. Section 107 does not in any way raise the status of the Revenue Court; it leaves it exactly as it was before the section was amended; but it gives its decree the character or finality which attaches to a decree of the civil Court.

9. Therefore in our opinion the principle of res judicata is applicable to the present case, and it is not open to the defendant to reargue or re-open any matter which has been the subject of a decision between the parties under Section 105(A) of the Ben. Ten. Act. It is clear, therefore, that the defence put forward by the defendant in this case must fail and that the decision of the learned District Judge is correct.

10. In this view of this case it becomes unnecessary for us to consider the second contention put forward by Mr. Bose. Accordingly we dismiss this appeal with costs.

V.S/R.K

11. Appeal dismissed.