Banke Bihari Lal vs Ram Anugrah Chaudhuri

James, J.—These appeals arise out of four suits for arrears of cash and produce rents. After the preparation of the Record-of-Rights there were proceedings under Sections 105 and 106, Ben. Ten. Act by which the tenants'' cash rents were settled; and it was determined for what land bhaoli rent was payable. In 1923 the landlords instituted suits for arrears of rent based on the Record-of-Rights as finally framed u/s 107, Ben. Ten. Act. The tenant defendants took the defence that the rents had been reduced by agreement immediately after they were settled, and that remissions had been annually made by the landlords. They also contended that the area for which bhaoli rent was payable was less than that stated in the plaint. The Munsif found that since the settlement of rent the landlords of the holdings had always realized rents at lower rates than those settled; and he decreed the suits at the rents which appeared in the finally published Record-of-Rights before proceedings had been taken u/s 105. For the area for which bhaoli rent was payable the Munsif, apparently not noticing that this area had been increased by the operation of the decrees u/s 106, Ben. Ten. Act, gave decrees to the plaintiffs in accordance with the Record-of-Rights as finally published u/s 103-B of the Act. The plaintiffs have now again sued for arrears of rent. There is not at present any dispute between the parties regarding the amounts payable as cash rent, but the plaintiffs claimed bhaoli rent for the areas which were recorded as bhaoli in accordance with the decisions u/s 106, while the defendants took the plea that the bhaoli rent was payable only for the area finally published u/s 103-B, Ban. Ten. Act as bhaoli land. The Munsif of Samastipur held that the decision u/s 106 operated as res judicata and that the decision of the rent Court in 1921, so far as it was at variance with the decrees u/s 106, was without jurisdiction. His decision was reversed on appeal by the District Judge of Darbhanga, who held that the decision of 1921 operated as res judicata on the question of the area for which bhaoli rent was payable.

The learned advocate for the plaintiff-appellants argues that the decision of 1924, so far as it is concerned with the area for which bhaoli rent is payable, should be regarded as affecting only the years in respect of which rent was then claimed; and that in view of the provision of Sections 107 and 109, Ben. Ten. Act the Munsif and the District Judge had no jurisdiction to determine what was the permanent character of this land. He relies mainly on the decision in Rameshwar Singh Bahadur v. Tounus Momin AIR 1923 Pat. 101 in which it was held that the provisions of Section 109, Ben. Ten. Act had this effect, that the decision of a rent Court, which was at variance with the previous decision u/s 105 of the Act, could not operate as res judicata. Mr. Pitamber Jha on behalf of the respondents does not suggest that the decision u/s 106, Ben. Ten. Act, did not operate as res judicata in 1924; but he argues that when the question was raised by the defendant it was necessary for the Munsif to decide it, and the effect of his decision as res judicata is not affected by the question of whether he committed an error of law in arriving at it. He also points out with respect to the decision in the case of Rameshwar Singh Bahadur v. Younus Momin AIR 1923 Pat. 101 that Section 109, Ben. Ten. Act, though it prohibits a Court from entertaining suits or applications which have formed the subject-matter of a suit u/s 106, does not prohibit a Court from entertaining defences which may be at variance with the decision of revenue officers u/s 106. Now, it is true that the question of whether the Court in arriving at its decision committed errors of law may not affect the question of whether the decision operates as res judicata between the parties; but the question is whether the Courts in 1924 had jurisdiction to determine whether bhaoli rent was or was not payable for the land in dispute in the years subsequent to those years in respect of which the suits of 1923 were instituted.''

On this matter I consider that the case should be held to be governed by the decision in Rameshwar Singh Bahadur v. Younus Momin AIR 1923 Pat. 101. Section 109, Ben. Ten. Act may not in express terms prohibit a civil Court from entertaining a defence which is at variance with a decision u/s 106, but it is clear from the provisions of Section 107(1), Ben. Ten. Act, read with Section 11, Civil P.C., that a Court trying a rent suit has no jurisdiction to decide an issue between the parties which has already been finally and definitely decided by a decision u/s 106, Ben. Ten. Act. In these circumstances I consider that while the decrees of 1924 ought to be regarded as valid decrees, so far as the liability of the parties during the years then in suit are concerned, the decision that bhaoli rant is payable only in respect of certain areas cannot be treated as res judicata to determine the areas for which such rent shall be payable in subsequent years, in defiance of the provisions of Section 107, Ben. Ten. Act.

I would therefore allow the appeals, set aside the decision of the lower appellate Court and restore the decrees of the Munsif. The plaintiffs will be entitled to their costs throughout.

Jwala Prasad, J.

I agree.