This appeal was originally heard by a Division Bench of this Court consisting of Ghose and Brett, JJ. In consequence of a difference of opinion between those two learned Judges it has been referred for re-hearing under the provisions of sec. 575 of the Code of Civil Procedure to this Bench, which has been specially constituted for the purpose.
The 2nd Plaintiff and the Defendant Jamini Kant Lahiri Chaudhuri, who is called in the plaint the “pro formâ” Defendant, are the proprietors of Mouzah Sahildeo in the District of Mymensingh. The first Plaintiff has obtained from the latter a putni of his share in the village, amounting to one-half. Before the grant of the putni the pro formâ Defendant joined with the 2nd Plaintiff's predecessor in title in making an application under sec. 103 of the Bengal Tenancy Act, 1885 (before the amendment of the Act). The application itself is not before us; but we find it described in the judgments of the Special Judge and of this Court respectively in the proceedings which arose out of it as an application “for the measurement and preparation of a record of rights” in respect of the lands situated in the Mouzah. In para. 6 of the plaint in the present suit it is stated that the applicants, “having been unable to measure the lands of the aforesaid Mouzah Sahildeo to effect a settlement with the tenants, jointly applied to the Collector of Mymensingh for the preparation of a record of rights in respect of the said Mouzah under Chap. X of the Bengal Tenancy Act VIII of 1885” and it is further stated that “thereupon the lands of the said Mouzah were measured and chittas, khuttians and other papers were prepared in connection therewith.”
It appears that certain land, in area about 592 bighas, which had been measured by the amin as being liable to the payment of ordinary rent was claimed by the original principal Defendants in the present suit as being their mokurari chak holding at a fixed rent, while the proprietors of the Mouzah maintained that they were not tenants at all, but were trespassers. The Settlement Officer in charge of the proceedings heard and decided the dispute under the provisions of sec. 106 of the Act, the decision to which he came being that the claimants did in fact hold about 156 bighas out of the area in question on the title which they set up. Both parties appealed to the Special Judge under the provisions of sub-sec. (2) of sec. 108 of the Act with the result that officer's decision was in favour of the claimants to the full extent of their claim. The proprietors then preferred a second appeal to this Court under sub-sec. (3) of sec. 108 of the Act. That appeal was dismissed on the ground that the judgment of the Special Judge disclosed no error of law.
The present suit was then brought with alternative prayers (a) for ejectment and mesne profits with a declaration of the right of the Plaintiffs to the land in dispute and a further declaration that the principal Defendants have no mokurari chak right or tenancy right in the land, or (b) for a declaration that the Plaintiffs are entitled to get a fair and reasonable rent on account of the same. The plaint sets forth the case of the Plaintiffs upon the merits of the dispute, and in the 12th para, the decision of the Settlement Officer is referred to as follows: “Defendants Nos. 1 and 2 being wrongfully in possession of the lands and there being no relationship of the landlord and tenant between the Plaintiff and the said Defendants, the Settlement Officer had no jurisdiction to decide any question between the parties in respect of the said lands. And the decision in the record-of-rights-proceeding can be no bar to a title suit under the ordinary law of the land.”
After a protracted trial the suit was dismissed without any decision on the merits upon the ground that the decision in the case under Chap. X of the Bengal Tenancy Act operated as res judicata under the provisions of sec. 13 of the Code of Civil Procedure.
From that decree of dismissal the Plaintiffs have preferred the present appeal.
The appeal has been argued before this Bench, as before, that which heard it on the former occasion, mainly on grounds which have not hitherto been put forward at any stage of the litigation, if we except the contention in the 12th para, of the plaint, which we have noticed above. It has been contended for the Appellants that in the absence of an order of the Government under sec. 101 of the Bengal Tenancy Act, a Revenue Officer would have no authority to make any survey, or prepare any record of rights upon an application made under sec. 103 of the Act, inasmuch as the latter section contains no provision empowering him to do these things, or empowering the Local Government to authorize him by rule or otherwise to do them. It is argued that under sec. 103 the powers of a Revenue Officer are limited to ascertaining and recording the particulars specified in the last foregoing section. Sec. 103, it is contended, is only a reenactment in a different form of the provisions of secs. 38 and 39 of Bengal Act VIII of 1869, which provided that in certain cases at the instance of the proprietor of an estate or tenure the Collector might under an order of a Court measure the lands comprised in such estate or tenure and ascertain and record the names of the persons in occupation of the same, or on the special application of the proprietor ascertain, determine and record the tenures and under-tenures, the rates of rent payable in respect of such lands and the persons by whom respectively the rents were payable. It is urged that sec. 103 is entirely unconnected with the following sections in the same Chapter, so that upon an application made under it there can be no settlement of rent under sec. 104, the record made is not “a record made under this Chapter” within the meaning of sec. 105, and the Revenue Officer making it has no power to hear and decide disputes under sec. 106, nor would sec. 107, which provides that his decision in proceedings for the settlement of rents and in proceedings under sec. 106 shall have the force of a decree, apply to anything which he might do under sec. 103. It is contended that in any case, as the tenancy was not admitted and the question was as to its existence, the Settlement Officer was not competent to decide that dispute at all. It is urged that any rules made by the Local Government under the provisions of sec. 189 of the Act which purport to empower and direct an officer acting upon an application made under sec. 103 to proceed in the same manner as if he were acting under an order made under sec. 101, are ultra vires.
No authority has been cited to us to show that this Court has ever recognized such a distinction as it has now been sought to establish between proceedings taken under sec. 103 and those taken under sec. 101 of the Act. On the other hand the Court has acted on the basis of the essential similarity of the proceedings, as in the case of Achha Mian Chowdhry v. Durga Churn Law. In that case action had been taken under sec. 103 of the Act; rents had been settled under sec. 104: a decision had been arrived at by the Revenue Officer and an appeal preferred to the Special Judge, who after deciding it reviewed his own order. It was held with reference to the rules framed by the Local Government under sec. 189 of the Act that proceedings under sec. 103 were suits between landlord and tenant within the meaning of sec. 143, so that the Special Judge was competent to review his order.
As regards the contention that sec. 103 is intended merely to supply the place of secs. 38 and 39 of Bengal Act VIII of 1869, we may remark in the first place that it is not altogether easy to reconcile it with the other contention which has been strongly pressed upon us in the course of the same argument, that an officer proceeding under sec. 103 has no power to make any survey or measurement at all. It is, moreover, useless for the purpose of determining the relation between sec. 103 and sec. 101 of the Bengal Tenancy Act to go back to Bengal Act VIII of 1869, because there was nothing in that Act at all corresponding to the provisions of the latter section. We must be guided entirely by the provisions of the Bengal Tenancy Act.
Both sec. 101 and sec. 103 occur in Chapter X which is headed “Record of Rights and Settlement of Rents.” The chapter ends with sec. 115. Sec. 103 provides that on the application of a proprietor or tenure-holder, a Revenue Officer may “ascertain and record,” with respect to a particular estate or tenure or any part thereof, the particulars specified in sec. 102, that is exactly the same particulars which may be required to be recorded under an order made under the provisions of sec. 101 “in respect of the lands in a local area,”
The suggestion that a proceeding under sec. 103 presupposes an order under sec. 101 seems to us to have no force. In the first place when once an order had been passed under sec. 101 for the making of a survey and the preparation of a record of rights in a local area, a further application on the part of a proprietor or a tenure holder in respect of lands within that area would be obviously unnecessary and unmeaning. A comparison of the two sections seems to show that they are intended to meet altogether different circumstances. Sec. 101 applies where the survey and record of rights are required to be made over an area which may include many different estates, and, except in the case contemplated by cl. (a) of sub-sec. (2) where the landlord or a large proportion of the landlords or of the tenants applies, where they are required for reasons of State. Sec. 103 applies where the proprietor of a particular estate or the holder of a particular tenure requires for his own purposes an authoritative official ascertainment and record of the same particulars in respect of that estate or tenure or any part thereof as would be recorded under an order made under sec. 101. In order to be recorded, the particulars must first be ascertained and as the particulars to be recorded are the same, whether the record be made in consequence of an order of the Local Government under sec. 101 or upon an application by a proprietor or tenure-holder under sec. 103 it seems difficult to see a priori why there should be any difference in the modes of ascertainment to be adopted in the two cases. Under Rule 47, Chap. VI of the Rules framed by the Local Government under the provisions of sec. 189 of the Act, a Revenue Officer in conducting operations under sec. 103 shall proceed in accordance with the rales for the guidance of officers acting under orders made under sec. 101. We are unable to accept the contention that because sec. 103 contains no express provisions for survey or measurement, a rule framed by the Local Government directing or empowering a Revenue Officer to make a survey or measurement must necessarily be ultra vires. The section empowers the Revenue Officer to “ascertain, subject to and in accordance with rules made in this behalf by the Local Government,” the particulars to be recorded and we think it must be taken that the Local Government is empowered to authorize the Revenue Officer to do any act not contrary to law which may be necessary to enable him to ascertain those particulars. Among the particulars in question are those specified in cl. (c) of sec. 102, namely, “the situation quantity and boundaries of the land held by” each tenant. These are particulars which could not be accurately ascertained without survey and measurement and we may point out that it is clear on the allegations of fact set forth in paras. 5 and 6 of the plaint that in the present case the proprietors could not possibly have attained the object which they had in view unless such operations had been carried out in the first instance. Moreover sec. 189 of the Act, under which the rules for the guidance of Revenue Officers were framed by the Local Government, expressly provides that by such rules the Local Government may confer upon any such officer, among other powers, that “to enter upon any land and to survey, demarcate, make a map of the same, and any power exercisable by any officer under the Bengal Survey Act, 1875.”
With regard to the application of sec. 104 to proceedings taken under sec. 103, we think that as the former section by its terms applies to “any proceedings under this chapter,” that is, Chap. X of the Act, it must be applicable to proceedings under sec. 103 equally with proceedings under sec. 101. Similarly, sec. 105 is by its terms applicable to a “record made under this chapter,” and a record of the particulars specified in sec. 102 seems to us to come within that description none the less when it is prepared upon an application made under sec. 103 than when it is the result of an order passed under sec. 101. It follows that secs. 106, 107 and 108 are also applicable.
We may point to the analogous provisions in Chap. XI for the recording of proprietor's private lands as lending some support to the view which we have expressed. Sec. 117 empowers the Local Government to direct a Revenue Officer to “make a survey and record of all the lands in a specified area which are a proprietor's private lands,” while sec. 118 provides that, in the case of any land alleged to be a proprietor's private land, on the application of the proprietor or of any tenant of the land, “a Revenue Officer may, subject to and in accordance with rules made in this behalf by the Local Government, ascertain and record whether the land is or is not a proprietor's private land.” The differences of expression between these two sections corres pond closely to those between secs. 101 and 103; yet sec. 119 renders it clear that the same procedure is to be adopted, whether action be taken under sec. 117 or sec. 118, for it provides that in either case the provisions of secs. 105 to 109, both inclusive, shall apply.
We next come to consider, the contention that as the fact of the tenancy was not admitted by the landlords and there was a question as to its existence, the Revenue Officer was not competent to decide that question.
We think that it was absolutely necessary for the Revenue Officer to deal with the question, in order to enable him to make the necessary entries under cls. (a) and (b) of sec. 102 of the Act, that is, the entries relating to the name and status of the tenant. There is no provision in the Act requiring that the Revenue Officer shall stay his hand in the event of such a dispute being raised as that in question. He is, on the contrary, required by sec. 103 to ascertain for himself the particulars to be recorded under sec. 102 and we think that sec. 106 contemplates that he shall be competent to decide any dispute which may arise as to existing facts affecting the correctness of any entry which he proposes to make, or has made, under sec. 102. It may be, as in the present case, that the decision of the dispute may involve questions of law such as can ordinarily be dealt with only by the Civil Courts; but that consideration does not seem to us to have any weight in the face of the fact that a special jurisdiction has been conferred upon the Revenue Officer to deal with such disputes.
It remains to consider what is the legal effect of the decision of the Revenue Officer, Sec. 107 of the Act provides that “it shall have the force of a decree” and it has therefore been argued for the Respondent that it must operate as res judicata, a view which also commended itself to Ghose, J., in dealing with the present case. The cases relied on in support of this argument are those of Gokhul Sahu and Gobind Sahu v. Jodunundun Roy, Joypal Dhobi v. Palukdhari Das and Ram Autar Singh v. Sanoman Singh. The second of these case was decided on the authority of the first and the third case followed the second.
In the first case there was no dispute in reality as to the relation of landlord and tenant between the parties; but the one alleged the land in question in the case to be rent-paying, while the other claimed that it was rent-free. The result of the record-of-rights-proceedings was to establish its rent-free character.
The landlord sued for a declaration that it was liable to pay rent and it was held by this Court “with considerable hesitation” that the matter was res judicata.
In the second case the dispute was as to whether certain land was the landlord's zerait or the tenant's occupancy holding. The Revenue Officer took the latter view and it was held by this Court on the landlord's suing for a declaration of his zerait right with possession that he was barred by the Revenue Officer's decision. It appears from the judgment to have been understood by the learned Judge who decided that case that there was no dispute as to the relation of landlord and tenant and their decision was based on the previous case which we have just noticed.
In the third case the landlord sued for rent at the rate found and recorded by the Revenue Officer under sec. 107 of the Bengal Tenancy Act upon a dispute between the parties. The tenants again disputed the rate of rent in the rent suit and it was held by this Court with reference to the last case that the decision of the Revenue Officer operated as res judicata.
For the Appellants it has been sought to distinguish these cases on the ground that there was not in them, as there is in the present case, a total denial of the relation of landlord and tenant by one of the parties and we have been asked to adopt the principle laid down in the case of Peary Mohun Mukerji v. Ali Sheikh, in which it was held that in a proceeding under sec. 158 of the Bengal Tenancy Act an issue regarding a dispute as to the existence of the relation of landlord and tenant between the parties could only be decided collaterally and did not arise between the parties in such a manner as to make the decision upon it res judicata between them in a subsequent regular suit, although it would be necessary to inquire into and decide such a dispute in order to determine the name and description of the tenant. The reasons stated for this decision may be briefly summed up as follows:—
(i) Sec. 158 does not empower the Court to decide disputes as to the right to possession of the land; but it is intended merely to provide a summary procedure for settling disputes between landlord and tenant in regard to the particulars referred to in cls. (a), (c) and (d) of the section.
(ii) No decree for possession could be given in a proceeding under sec. 158, so that one person might be declared entitled to possession, while another might ostensibly hold actual and direct possession.
(iii) The section does not empower the Court to bring before it all persons claiming to have rights on the land.
It seems to us difficult to say that the first two of these reasons are not as applicable to a record under sec. 102 as to a proceeding under sec. 158. With regard to the particulars which may be determined by a Court under sec. 158, on the application of either the landlord or the tenant, cl. (a) of the section answers to cl. (c) of sec. 102, cl. (b) to cl. (a), cl. (c) to cl. (b) and cl. (d) to cl. (e). Moreover sub-sec. (3) of sec. 158 provides that an order made on an application under the section shall have the effect of and be subject to the like appeal as a decree. There is, therefore, we think, sufficient analogy between a proceeding under sec. 158 and a proceeding under sec. 103 to make the case of Peary Mohun Mukerji v. Ali Sheikh applicable to the case before ??? appears to be distinguish ??? the cases cited for the ??? the ground suggested by ??? vakil for the Appellants. ??? do not feel pressed by the authority of those cases to hold that the rule of res judicata applies in the present case.
There remains another consideration in connection with the question whether the present suit is barred as res judicata. In order to constitute res judicata under sec. 13, C.P.C, the issue with respect to which the rule is to operate must have been heard and finally decided by a Court of jurisdiction competent to try the subsequent suit in which it is sought to raise the same issue. The present suit is a suit in ejectment and for mesne profits as well as for declaration of title and the Revenue Officer would not have been competent to try it. In their judgment in the second appeal preferred against the decision of the Special Judge in the proceedings under the Bengal Tenancy Act, the learned Judges of this Court who disposed of the case observed: “We think that the question as to whether the Defendants have a right to eject the Plaintiffs does not properly arise in these proceedings. This is not an ejectment suit and no issue on this point was raised before the Settlement Officer.” No such issue could, in fact, be raised before a Revenue Officer acting under Chap. X of the Bengal Tenancy Act, for unless he is called upon to make a settlement of rent, he can only ascertain and record the existing state of things. We do not think that, if this be so, it can be said that the decision of the. Revenue Officer would operate as res judicata to bar the present suit under the provisions of sec. 13, C.P.C There is no provision in the Bengal Tenancy Act which has the effect of making such a decision final for all purposes irrespectively of the provisions of sec. 13, C.P.C Sec. 107 does indeed provide that a decision in a proceeding under sec. 106 “shall have the force of a decree,” but it does not necessarily follow that it shall in all cases operate as res judicata, for an ordinary decree of a Civil Court has not that effect except on certain conditions, which are set forth in sec. 13, C.P.C
The conclusion at which we arrive on the whole is that the present suit was not barred. We therefore decree the appeal and remand the case to the Court of first instance for decision on the merits. The costs of this appeal will follow the result.
S.C.S
Appeal allowed:
Case remanded.