Ram Narayan Singh and Others vs Sukhdeo Teli and Another

B.K. Mullick, J.—This is an appeal against a decision of the Subordinate Judge of Chapra dismissing the plaintiffs'' suit. The plaintiffs sued for a declaration of title and recovery of possession of certain land from the defendant No. 1 alleging that they were the reversioners of one Padarath. The defendant''s main defence was that long before the succession opened he had purchased the land from Padarath for value. The findings of fact are all in the defendant''s favour and the only question of law which arises in this second appeal is whether by reason of the provisions of Section 109 of the Bengal Tenancy Act the defendant is precluded from taking his present defence.

The argument as to the application of Section 109 is put in this way: It appears that on the 7th May, 1920, the defendant made an application to the Revenue Officer purporting to be one u/s 106 of the Bengal Tenancy Act to relate to a dispute as to the entry in the Record of Rights. That entry showed the recorded tenant to be still in possession, namely, Padarath, and the defendant''s application was that the name of Padarath should be removed and his name should be entered as the tenant in possession. The defendant did not prosecute that application and withdrew it without leave to institute a fresh application, It is now contended that Section 109 of the Bengal Tenancy Act debars the defendant from taking as a ground of defence the plea that he is the purchaser of the property and reliance for this purpose is placed on the decision of the Full Bench of the Calcutta High Court in the case of Becharam Choudhuri v. Purna Chandra Chatterjee 88 Ind. Cas. 637 : 52 C. 894 : 41 C.L.J. 456: 29 C.W.N. 755 : AIR 1025 Cal 845. With regard to this decision of the Full Bench it is quite clear that it is not upon the same subject-matter. That decision related to an application u/s 105 of the Bengal Tenancy Act. An application had been made for the settlement of fair rent before the Settlement Officer and had been withdrawn with leave to make a fresh application. A suit was subsequently brought in the Civil Court for enhancement of rent and it was held by the majority of the Full Bench that the subject matter of the civil suit and the subject-matter of the application u/s 105 being identical no civil suit would lie by reason of the provisions of Section 109. In the present case the application of the 7th May, 1920, made by the defendant was an application u/s 106 and I fail to see how the subject matter of that application can be identical with the subject matter of the present suit. That application related to a dispute regarding the correctness of the entry. The present suit is for a declaration of title and recovery of possession. In reality it is a suit for recovery of possession in which the declaration is merely incidental. I cannot see how the present suit is concerned with any matter which has already been the subject of the prior application. If the application u/s 106 had proceeded to trial and there had been a decision declaring that the plaintiff was entitled to be entered as the raiyat something might have been said for the view that another suit would not lie by the same plaintiff. But even in that case it is for consideration whether this Court would go so far as to accept the reasoning of the majority of the Full Bench in the decision cited above in its entirety. But we are not concerned with the correctness of the Full Bench decision because as I have said the subject-matter of the present suit is altogether different. In my opinion, therefore, b. 109 would not have been a bar to a suit for declaration of title and recovery of possession by the defendant No. 1 and in this view I am supported by the decision of a Division Bench of the Calcutta High Court in the case of Aswini Kumar Aich v. Sarada Charan Basu 37 Ind. Cas. 253 : 24 C.L.J. 79. This decision does not appear to have been noticed by their Lordships of the Calcutta High Court in their judgment in the Full Bench case.

There is, however, another ground upon which the defendant ought to succeed. Section 109 debars a person who has made an application u/s 106 from bringing a suit in regard to the same subject-matter in a Civil Court. But the section nowhere says that a defendant cannot take as a defence grounds which were the subject-matter of an application which was made by him before the Settlement Officer in a proceeding u/s 106 but on which no decision having the force of a decree was made by the Settlement Officer. The bar is placed upon a plaintiff who has already been an applicant before the Settlement Officer but there is no disqualification of any kind put by the section upon a defendant who has been an applicant before the Settlement Officer. There may be circumstances when Section 107 and the principle of res judicata may operate but that is a different matter.

On these two grounds the decision of the learned Subordinate Judge must be affirmed and the appeal must be dismissed with costs.

Courtney-Terrell, C.J.

I agree and only add this observation. As my learned brother Mullick has pointed out the Full Bench case is no authority in this matter inasmuch as that dealt with an application u/s 105 where the subject matter of the application and the subsequent suit were the same, whereas in this case the application is u/s 106 and the suit and the application deal with different subject-matters But 1 think that the reasoning of the majority of the Court in the Full Bench case went on a wider basis still and upon the ground stated by Mr. Justice Walmsley was based upon the strict interpretation of the words of the section that once an application had been made under any of those sections the matter could never be the subject of a suit again in the Civil Court. In my view the reasoning of the majority of the Calcutta High Court is difficult to understand and I prefer the reasoning given by Mr. Justice Suhrawardy in his minority judgment.