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Apurba Krishna Roy v. Shyama Ch. Paramanik

Calcutta High Court

Jul 10, 1919

Judgment

Subsequent
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Judgment Summary — S.A. Nos. 1282 & 984 of 1918

Factual and Procedural Background

This appeal arises from a suit seeking a declaration that an entry in the record-of-rights—stating that the plaintiff held certain land under the defendant and that the land was liable to assessment of rent—was erroneous because the lands were nishkar (rent-free). After final publication of the record-of-rights, the landlords (defendants in the present suit) applied for settlement of fair and equitable rent under sec. 105 of the Bengal Tenancy Act. The plaintiff objected that the land was lakheraj (rent-free). The Settlement Officer framed issues including whether the land was nishkar lakheraj. The defendants did not produce evidence, and the Settlement Officer, by judgment dated 19 November 1913, assessed rent on the land, referring to the record-of-rights and noting that the case proceeded ex parte due to lack of evidence by the defendants.

The Court of first instance held that the Settlement Officer's order under sec. 105 operated as res judicata and dismissed the plaintiff's suit. The learned Subordinate Judge on appeal set aside that decision and remanded the suit for trial on the merits. The defendants (appellants) have preferred the present appeal against the remand.

Legal Issues Presented

Whether the Settlement Officer's decision under sec. 105 (and sec. 105A) of the Bengal Tenancy Act amounted to a decision on the question of whether the land was lakheraj, and therefore operated as res judicata.
Whether, having regard to sec. 107 of the Bengal Tenancy Act (which gives a Settlement Officer's decision the force and effect of a decree of a civil court), the plaintiff is bound by the Settlement Officer's decision.
Whether the plaintiff's civil suit is barred by sec. 109 of the Bengal Tenancy Act because the matter was already the subject of proceedings under secs. 105–108 (inclusive).

Arguments of the Parties

Appellants' Arguments

It was contended that there was no decision by the Settlement Officer that the lands were not lakheraj (i.e., that no express adjudication on that point was made).
It was further contended that the question whether the land was liable to rent had been raised by the tenant (in objection) rather than by the landlord (applicant before the Settlement Officer), and therefore it was not the subject of an application under the relevant provisions.

Respondent's Arguments

The respondent relied on the record-of-rights (entered under sec. 103B of the Bengal Tenancy Act), arguing that such entries are presumed correct until proved otherwise and that the Settlement Officer was entitled and bound to act upon that record when the defendants produced no evidence.
The respondent's counsel referred the Court to the decision in Nawab Bahadur of Murshidabad v. Ahmad Hossain to support points about the operation of sec. 109, though that case was distinguished on its facts.
The respondent also relied on authorities establishing that questions necessarily decided (even by implication) operate as res judicata; the Court treated these authorities as answering the argument that there was no express decision by the Settlement Officer.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gregory v. Moleswortk; Soorjimonee Dayee v. Suddanund Mahapatra	Where a question has been necessarily decided in effect (though not in express terms) between parties, it operates as res judicata.	The Court cited these authorities to support the view that the Settlement Officer's judgment, read as a whole, amounted to a decision on the issue of liability to rent and thus operated as res judicata between the parties.
Pahalwan Singh v. Maharaja Muheswar Buksh Singh Bahadur	A decision on a question by necessary implication will operate as res judicata.	The Court relied on this principle to reject the contention that absence of an express verbal adjudication meant there was no decision; the Settlement Officer's conduct and judgment were taken to amount to a decision.
Nawab Bahadur of Murshidabad v. Ahmad Hossain	sec. 109 requires that the civil suit should concern a matter which has already formed the subject of an application under secs. 105–108, not merely one which might have formed such the subject.	The Court considered this authority but distinguished it: in that case the question before the Civil Court had never been raised before the Settlement Court, whereas in the present case the issue was raised and decided (or necessarily decided) before the Settlement Officer.
Parbati v. Toolshi Kapri	The decision of a Settlement Officer to which sec. 107 gives the force and effect of a decree does not include an order dismissing a suit under sec. 106 for default; the word "decision" implies an adjudication on the merits.	The Court referred to this authority to contrast circumstances: unlike in Parbati, the present case involved an express issue on the point and a substantive adjudication (proceeded with ex parte because of lack of evidence), so the present Settlement Officer's decision was treatable as a decision within sec. 107.

Court's Reasoning and Analysis

The Court's analysis proceeded in the following steps, based strictly on the material in the record:

The Court noted the record-of-rights entry showing the lands recorded as mal land liable to assessment of rent and that after publication the landlords applied under sec. 105 for settlement of rent; the plaintiff objected on the ground that the lands were lakheraj.
Because the record-of-rights entry is presumed correct under sec. 103B of the Bengal Tenancy Act until proved incorrect, and because the Settlement Officer had the record before him and expressly referred to it in his judgment, the Officer was justified—and in the Court's view bound—to act upon that record when no evidence was produced by the defendants on the issue.
The Settlement Officer's statement that the cases had been proceeded with ex parte was interpreted as indicating that the defendants failed to adduce evidence after framing of issues; the Officer therefore proceeded on the basis of the record-of-rights and fixed the rent.
The Court concluded that there was in fact a decision by the Settlement Officer on the issue (even if not in the precise words "land is not lakheraj"), and it relied on authorities establishing that a question decided by necessary implication operates as res judicata.
Applying sec. 107 (which gives a Settlement Officer's decision the force and effect of a civil court decree), the Court held the Settlement Officer's decision to be binding on the plaintiff.
Independently, by reference to sec. 109 the Court held that a civil court shall not entertain suits concerning matters which have been the subject of proceedings under secs. 105–108: because the question whether the land was lakheraj had been the subject of proceedings under sec. 105A, the civil suit was barred.
The Court rejected the argument that issues before the Settlement Officer must be raised only by the applicant: sec. 105A expressly contemplates issues arising in such proceedings (including issues that, by their nature, must be raised by the opposite party).
The Court considered and distinguished Nawab Bahadur and Parbati on their facts: Nawab Bahadur was distinguishable because there the point was not raised before the Settlement Court; Parbati was distinguishable because it dealt with dismissals for default under sec. 106 whereas in the present case there was an issue on the merits and an adjudication (albeit following non-production of evidence).

Holding and Implications

Core Ruling: The Court set aside the Subordinate Judge's order remanding the case and restored the decision of the Court of first instance dismissing the plaintiff's suit; the Settlement Officer's decision under the relevant provisions (sec. 105A read with sec. 107) was held to be binding on the plaintiff. Costs were awarded in all Courts.

Further specific outcomes recorded by the Court:

The appeal stands dismissed against the minor respondents (Nos. 3, 4 and 5) as the appellant elected not to proceed against them.
In S.A. No. 984 of 1918 the decree of the lower Appellate Court was set aside and the case was sent back to that Court so that questions other than those dealt with in S.A. No. 1282 of 1918 may be decided; costs were to abide the result; the appeal was likewise dismissed against the minor respondents in that case.

Implications: The direct effect is that the plaintiff's civil suit was dismissed and the Settlement Officer's rent assessment decision was treated as binding (res judicata and effective under sec. 107). The opinion does not purport to lay down any broader novel legal proposition beyond application and reconciliation of the cited statutory provisions and authorities to the facts before the Court.

Show all summary ...

The Judgment of the Court was as follows:—

S.A No. 1282 of 1918.

This appeal arises out of a suit for a declaration that an entry in the record-of-rights stating that the Plaintiff held the land in dispute under the Defendant and that the land was liable to assessment of rent, is erroneous, the lands being nishkar (rent-free).

The Court of first instance held that the order of the Settlement Officer under sec. 105 of the Bengal Tenancy Act operated as res judicata. That decision has been set aside on appeal by the learned Subordinate Judge who remanded the suit for trial on the merits. As against that decision, the present appeal has been preferred by the Defendants.

As stated above, in the record-of-rights the land was entered as mal land liable to assessment of rent. After final publication of the record-of-rights, the landlords Defendants in the present case applied for settlement of fair and equitable rent under the provisions of sec. 105 of the Bengal Tenancy Act. The present Plaintiff thereupon raised the objection that the land was not liable to assessment of rent, it being lakheraj. Several issues thereupon were framed, one of them Feing whether the land in suit is the nishkar lakheraj property of the Defendants. The Defendants, however, did not produce any evidence and the Settlement Officer by his judgment, dated the 19th November 1913, assessed certain rent upon the land. The Settlement Officer in his judgment stated that the lands were recorded in the names of the Defendants as tenants under the Plaintiffs and noted as being liable to assessment of rent in the record-of-rights. He further said that the Defendants Lad failed to produce any evidence after the framing of the issues and so the cases had been proceeded with ex parte.

It is contended before us that there was no decision by the Settlement Officer that the lands were not lakheraj. But the Defendants expressly raised the issue whether the land was nishkar lakheraj and did not adduce any evidence upon that issue. The entry in the record-of-rights under the provisions of sec. 103B of the Bengal Tenancy Act shall be presumed to be correct until it is proved by evidence to be incorrect. The record-of-rights was before the Settlement Officer and was expressly referred to by him in his judgment. In the absence of any evidence to show that it was incorrect, the Settlement Officer was not only justified but was bound to act upon that record; and he did act upon that record. That is what he meant by saying that the case had been proceeded with ex parte. The landlord had not to adduce any other evidence except to produce the record-of-rights and it was upon that record that the Settlement Officer proceeded and fixed the rent.

We do not see how, in these circumstances, it can be said that there was no decision by the Settlement Officer.

It may be pointed out that where a question has been necessarily decided in effect though not in express terms between parties to a suit, they cannot raise the same question as between themselves in any other suit in any other form. See Gregory v. Moleswortk and Soorjimonee Dayee v. Suddanund Mahapatra . It may also be pointed out that where a question is decided by necessary implication, the decision would operate as res judicata. See Pahalwan Singh v. Maharaja Muheswar Buksh Singh Bahadur (3). We have referred to these authorities only in answer to the argument advanced that there was no express decision as to the land not being lakheraj; but it seems to us, taking the judgment as a whole, that there was a decision upon the question raised before us.

We think, therefore, that the decision of the Settlement Officer under sec. 105A is binding upon the Plaintiff in the present case having regard to the provisions of sec. 107 of the Bengal Tenancy Act.

Apart from the provisions of sec. 107, we think that the present suit cannot be maintained under the provisions of sec. 109 of the Bengal Tenancy Act. That section lays down that “subject to the provisions of sec. 109A, a Civil Court shall not entertain any application or suit concerning any matter which is, or has already been, the subject of an application made, suit instituted or proceedings taken under secs. 105 to 108, both inclusive.” In this case the question whether the land is lakheraj was the subject-matter of an application under sec. 105A of the Bengal Tenancy Act before the Settlement Officer.

It was contended that the question was not raised by the landlord but by the tenant in his objection and that, therefore, it was not the subject of an application. But we think it is unnecessary that the question should be raised by the applicant before the Settlement Court because sec. 105A clearly refers to the “issues.” It says “where in any proceedings for the settlement of rents under this part, any of the following issues arise (a) whether the land is or is not liable to the payment of rent, etc., etc.,…. the Revenue Officer shall try and decide such issue and settle the rent under sec. 105 accordingly.” It does not lay down that those issues can only be raised by the applicant; on the contrary, some of them (from their very nature) must be raised by the Opposite Party.

The learned Pleader for the Respondent referred us to the case of Nawab Bahadur of Murshidabad v. Ahmad Hossain but that case merely lays down that “sec. 109 requires that the civil suit should have for its subject a matter which has already formed and not one which might have formed the subject of an application under sec. 105.” There the question which formed the subject-matter of the suit before the Civil Court was never raised before the Settlement Court and the decision therefore does not affect the case” before us.

We were also referred to the case of Parbati v. Toolshi Kapri . All that the case decided is that “the decision of a Settlement Officer to which the force and effect of a decree of a Civil Court is given by sec. 107 of the Bengal Tenancy Act does not include an order of dismissal of a suit under sec. 106 of the Act for default, the word ‘decision’ implying an adjudication on the merits.”

In the present case, as we have seen, the question was directly raised and there was an express issue on the point and even though the Defendant did not adduce any evidence in Court, the decision of the Settlement Officer was open to appeal, and to second appeal to this Court.

In all these circumstances, the order of the Subordinate Judge remanding the case must be set aside and the decision of the Court of first instance dismissing the suit must be restored with costs in all Courts.

It appears from the order passed by Teunon and Walmsley, JJ., on the 13th February 1919, that the appeal was dismissed against the minor Respondents Nos. 3, 4 and 5 as the Appellant's Pleader informed the Court that the Appellant would not proceed against them. The appeal will therefore stand dismissed against the said Respondents.

S.A No. 984 of 1918.

In the view we have taken in S. A1. No. 1282 of 1918, the decree of the lower Appellate Court in this case is set aside and the case sent back to that Court in order that the question other than that dealt with by us in S.A No. 1282 of 1918 may be decided and the case disposed of according to law. Costs to abide the result.

N.G