Nawab Bahadur Of Murshidabad v. Ahmad Hossain

This is an appeal by the first Defendant in a suit for a two-fold declaration; viz., first, that proceedings under Chap. X of the Bengal Tenancy Act, commenced at his instance, were fraudulent, ultra vires and void; and, secondly, that, if the proceedings were not vitiated by fraud, the Plaintiffs were maurasi makurari raiyats in respect of the disputed lands (and not tenure-holders as entered in the record-of-rights), that the lands formed distinct raiyati tenancies (and not one tenure), and that the Defendant landlord was not entitled to realise Rs. 84 which had been assessed by the Settlement Officer as fair rent under sec. 105 of the Bengal Tenancy Act. The suit was defended on the ground, amongst others, that it was barred under sec. 109. The Court of first instance gave effect to this contention and dismissed the suit. Upon appeal, the District Judge has reversed that decision and has remanded the suit for trial on the merits. The present appeal is directed against this order of remand, and raised the question, whether the suit is maintainable notwithstanding the provisions of sec. 109.

Sec. 109 provides 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. Before we determine the scope of sec. 109 and its effect when applied to the present suit, we may point out that the proviso to sec. 111A is of no assistance to the Plaintiffs. That proviso applies only to a case where the record-of-rights has been framed in pursuance of an order made under sec. 101, sub-sec. (2), cl. (d); that is, to a case where a settlement of land revenue is being or is about to be made; but in the case before us, the record-of-rights was prepared at the instance of the landlord under the provisions of sec. 101, sub-sec. (2), cl. (4). Consequently we have to determine how the suit is maintainable notwithstanding the provisions, of sec. 109.

It is plain that in so far as the Plaintiffs ask for a declaration that the proceedings under Chap. X were vitiated by fraud, sec. 109 does not present an effective bar. No question of fraud was the subject of the application under, sec. 105; consequently the suit, treated as a suit for relief on the ground of fraud, is maintainable. With regard to the alternative declaration, the Appellants contend that as the questions for determination might have been made the subject of controversy in the proceedings under sec. 105, they cannot be investigated in the present suit. In our opinion, there is no force in this contention. Sec. 105A, no doubt, authorises the Settlement Officer in the course of proceedings under sec. 105 for the settlement of fair and equitable rent, to investigate questions which would otherwise be determined at the instance of the aggrieved party in a suit instituted under sec. 106. But in the case before us, no such question was raised or investigated in the proceeding under sec. 105. The reason assigned by the Plaintiffs is that they were not apprised of the proceedings under Chap. X and consequently did not appear before the Settlement Officer. Whether the tenants were or were not aware of the proceedings under Chap. X, the fact remains that the mattters now in controversy did not form the subject of investigation under sec. 105. Consequently, on a plain and literal reading of sec. 109, the position cannot be maintained that the present suit concerns a matter which has already been the subject of an application under sec. 105. The Appellant, however, urges us to put a wider construction upon sec. 109. He contends that, as in a case where sec. 11, C.C.P, is applicable, a question which might and should have been raised is deemed to have been raised and decided, we should hold under sec. 109 that a matter has been the subject of an application under sec. 105, whenever it might, if the Defendant had so chosen, have been raised and decided under sec. 105 read with sec. 105A. We are of opinion that this contention is unsound. If we were to accept the construction put forward by the Appellant, we should have to read into sec. 109 words which are not to be found there; we cannot hold, on the analogy of the doctrine of constructive res judicata, that the jurisdiction of the Civil Court has been constructively excluded even when a point has been neither raised nor decided under sec. 105 read with sec. 105A. In this connection, we may observe that secs. 105 and 109 were inserted in the Bengal Tenancy Act by Act III of 1898, B.C Sec. 105A was subsequently introduced into the Bengal Tenancy Act by sec. 26 of Act I of 1907, B.C But though the scope of sec. 105 was thus widened and sec. 105A was included in sec. 109, the language of sec. 109 was left unaltered. If the Legislature had intended to adopt the view put forward by the Appellant, the language of sec. 109 would, no doubt, have been suitably modified. As pointed out by this Court in a long line of cases, amongst them, in Pandab Dowdri v. Ananda Kissore, Sashi Bhusan v. Eshabar and Sasi Bhusan Hazra v. Asioini Kumar Samanta, to attract the operation of sec. 109, 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 sec. 105. These cases were decided before the introduction of sec. 105A into the Bengal Tenancy Act. But as the introduction of sec. 105A has not altered for our present purpose the scope of sec. 109, sec. 109 must now be construed on the same lines as before the introduction of sec: 105A. In this view, it is plain that in so far as the Plaintiffs seek for a declaration that they are maurasi makurari 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 sec. 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 proceeding under sec. 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 landlord. 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 sec. 109, for this question directly relates to a matter which had formed the subject of the application under sec. 105. This view is in accordance with that taken by this Court in the case of Sheodhani Pandey v. Beni Pershad Koeri(4). It is, consequently, supperfluous to determine what the position of the Plaintiffs will be, if they succeed in this litigation and obtain the other declaration which they seek. It is conceivable that in such a contingency, if, notwithstanding then success, the landlords institute a suit for rent against them on the basis of the determination under sec. 105, they may be met successfully by a plea which need not be elaborated for the purposes of this suit.

The result is that the prayer for a declaration that the Defendants are not entitled to get the assessed amount of jama of Rs. 84 will be struck out from the plaint. Subject to this alteration, the order for remand made by the District Judge will stand. As the appeal has substantially failed, the Appellant must pay the Responts their costs in this Court.

N.G