Fletcher, J.:— These appeals are preferred by the Defendant who is the darputnidar of a certain mauza called Najarpur of which his father obtained a darputni settlement on the 13th April 1899. The Plaintiffs in these cases are the various tenants in the mauza. The rights that the Plaintiffs allege they have in the lands are either that their lands are lakheraj or in two cases, I think, that they are held at fixed rents. The only objection that has been raised before us is as to whether the Civil Court had jurisdiction to hear and determine these suits. Proceedings were commenced on the 27th July 1901 by the father of the Defendant to have a record-of-rights prepared and that being done, the record was finally published on the 9th July 1903, and the lands of the Plaintiffs in those suits were all recorded as mal lands. The Defendant's father then applied under sec. 105 of the Bengal Tenancy Act for assessment of fair and equitable rents of the lands. Objections were raised by the tenants, namely, that certain of the lands were lakheraj and the rest of the lands were held at fixed rents. The Settlement Officer held that certain of the lands were lakheraj, but that the other lands were not held at fixed rents, but were liable to have fair rents assessed. The cases were then taken before the Special Judge and the learned Special Judge agreed with the decision of the Settlement Officer. Then second appeals were preferred to this Court and this Court was of opinion that the decision of the Settlement Officer was ultra vires in holding that the lands were lakheraj and that the duly of the Settlement Officer was to settle rents having regard to the entries that appeared in the record-of-rights. This Court upheld the decision in so far as it held that the other lands were not held at fixed rents.* Then the cases went back to the Settlement Officer and he settled, in accordance with the decision of this Court, fair rents under the provisions of the Bengal Tenancy Act. The tenants then went to the Civil Court and they brought, amongst other suits, the suits that are now under appeal in which they asked for a declaration either that the lands were lakheraj or that they were held at fixed rents. It is now argued that the decisions of the Courts below are wrong on the ground that the decision of the Settlement Officer or rather the Revenue Court with reference to what is the fair and equitable rent is binding and conclusive and that the tenants are not entitled to question that decision in any Civil Court. Of course, that is so under the provisions of sec. 109 of the Bengal Tenancy Act, provide that the question in the Civil Court is concerning any matter which is or has already been the subject of an application made under secs. 105 to 108 of the Bengal Tenancy Act. But it is obvious from the decision of this Court in the second appeals to which I have referred that this Court held that the Revenue Officer was not competent to go behind the record-of-rights and enquire what was the real nature of the interest of the tenants. This Court said that the duty of the Revenue Court was limited to the enquiry as to what was the fair rent having regard to the entry that appeared on the record-of-rights. It is quite obvious that, in that view, sec. 109 of the Bengal Tenancy Act would not be a bar to the present suits.
Then an argument that seems to me to have no substance at all has been advanced and that is that, having regard to the terms of sec. 106 of the Bengal Tenancy Act, as the tenants have taken no proceedings as contemplated by that section, therefore, they are deprived of the right of suit in the Civil Court. But the wording of the section clearly does not bear any such construction. The words are that a suit may be instituted. The word “may” cannot be construed as meaning that the jurisdiction of the Civil Court is excluded. Before the jurisdiction of the ordinary Courts of the country can be excluded by a Special Court, namely, the Revenue Court, there must be the clear words in the statute excluding such jurisdiction. It is quite true that Dr. Ghose has referred to us an unreported decision of this Court in which the view is taken that sec. 106 does exclude the jurisdiction of the ordinary Civil Court. But that decision stands alone or rather, if it has got any support at all, it is supported by decision in Jogendra Nath v. Krishna Promoda(1) that has received judicial consideration on more than one occasion and cannot be considered as lending a strong support. It is sufficient to say that my learned brother who is sitting with me has, in a well-considered judgment, already dissented from this decision which Dr. Ghose relies upon. I do not see how, on the plain words of the sec. 106, it can be said that the section excludes the right of the Civil Court. It is an extremely dangerous proposition to say that whenever a statute gives a person ??? right to go, if he thinks fit, to a special tribunal that necessarily excludes the jurisdiction of the ordinary Courts of the country. I think that it does not so exclude and that the words of sec. 106 are merely permissive, and, in my opinion, the decisions in the two cases that have been cited to us by the learned Vakil for the Respondents are more in accordance with not only principle but the plain words of sec. 106 than that which Dr. Ghose has relied upon. That being so, it is manifest that there is nothing in the proceedings that have taken place before the Revenue Court or the omission of the Plaintiffs in these suits to resort to the Revenue Court that would take away the rights that the Plaintiffs allege they have in the lands as against the durputnidar. It seems to me to be an alarming proposition to put forward that a person because he went to the Civil Court instead of going to the Revenue Court is liable to be deprived of his rights to the property which he may have purchased or inherited from his ancestors. I agree with the decision of my learned brother in the case that has been handed over to us by the learned Vakil for the Respondents, and, I think, that the judgment arrived at by the learned Judge of the lower Appellate Court's correct. The appeals, therefore, fail and must be dismissed with costs.
Teunon, J.:— I agree.
Appeals dismissed.