Siva Prosad Choudhury and Others vs Jitendra Nath Ghosal and Others

Das, J.—This appeal is at the instance of Defendant No. 1. It arises out of a suit instituted by the Plaintiff in the 1st Court of the Munsif, Howrah, for a declaration of his nishkar (rent-free) right in the disputed land, for correction of the entry in the record-of-rights to the effect that the land is liable to assessment of rent, and for a further declaration that the ex parte order in a proceeding under sec. 105 of the -Bengal Tenancy Act is not binding on the Plaintiff and for a permanent injunction restraining the Defendant No. 1 from proceeding with a suit instituted by the latter for recovery of rent in respect of the disputed land. The Defendant No. 1 filed a written statement alleging that the disputed land was not nishkar and that the order under sec. 105 of the Bengal Tenancy Act was binding on the Plaintiff and precluded the latter from setting up a nishkar right.

The Munsif dismissed the suit on the finding that the land was not nishkar and that the order under sec. 105 was cogent evidence in proof of that fact.

The Plaintiff preferred an appeal to the Court of the District Judge. The appeal was heard by the Subordinate Judge, 1st Court. Howrah. who allowed the appeal and decreed the Plaintiffs suit on the finding that the land was nishkar and that the parte order under sec. 105 was not conclusive to negative the nishkar right of the Plaintiff.

The Defendant No. 1 preferred this second appeal to this Court.

The appeal was heard by Sen and Chunder. J J., who were of the opinion that there was a divergence of judicial opinion on the point of the binding character of ex parte orders in sec. 105 proceedings.

As the question arose in a second appeal, an order was made referring the whole appeal to a Full Bench.

The question that arises, may be formulated as follows:-

Whether an ex parte order in a proceeding under sec. 105 of the Bengal Tenancy Act settling a fair and equitable rent in respect of a holding concludes the tenant from proving his nishkar right in a subsequent suit for declaration of such right.

Obviously no question of res judicata arises, because the Revenue Officer who decided the sec. 105 proceeding is not competent to try the later suit for declaration of the nishkar right.

It was contended that finality of a decision in a sec. 105 proceeding is provided for in sec. 107.

Sec. 107 lays down that the decision of the Revenue Officer in any proceeding under sec. 105, sec. 105A and sec. 106 shall have the force and effect of a decree of a Civil Court in suit between the parties and subject to the provisions of secs. 108 and 115C, shall be final.

We have, therefore, to enquire as to what is decided in an ex parte proceeding under sec. 105.

Sec. 105 enables either the landlord or the tenant to apply to the Revenue Officer for settlement of fair and equitable rent in respect of the land held by the tenant.

In a proceeding under sec. 105, the scope of inquiry is limited to a decision of the question of quantum of fair and equitable rent payable for the holding.

It was urged that such a decision implies that the land is liable to payment of rent and is not nishkar.

That such a constructive adjudication is not to be regarded as a decision within sec. 107, follows from the provisions contained in sec. 105A.

Sec. 105A was added by the Amending Acts of 1907-1908 for the then Provinces of East Bengal and West Bengal.

The object of the amendment was to get rid of the difficulty experienced by Revenue Officers in settling fair rent where the tenant raised by way of defence, the issues which are now set out in sec. 105A.

A proceeding under sec. 105 proceeds on the assumption that the entries in the finally published record-of-rights are correct. Before the introduction of sec. 105A, if the tenant sought to raise the issues stated in sec. 105A he had to take recourse to a suit under sec. 106. The proceedings for settlement of fair and equitable rent had to wait till the suit under sec. 106 was finally decided up to the Appellate Court. This was a long and complicated procedure.

The amendments in 1907-1908 got over this difficulty, by inserting sec. 105A.

Sec. 105A empowered the Revenue Officer to try and decide the issues mentioned in cls. (a) to (g) if such issues arise in the course of proceedings under sec. 105.

Such issues arise when a party to the proceedings asserts the proposition involved in the issue and the assertion is denied by the other party.

It is only then that the Revenue Officer proceeds to try and decide the issue raised and his decision becomes final under sec. 107.

If no issue as is set forth in cls. (a) to (g) of sec. 105A is raised, the Revenue Officer is not called upon to try and decide the issue but he merely settles the fair and equitable rent. In such a case, there is no decision by the Revenue Officer on any of these issues and no question of finality under sec. 107 arises.

CI. (a) of sec. 105A relates to this question whether the land is or is not liable to the payment of rent.

If the tenant appears and raises the question of nishkar, the Revenue Officer is required to try and decide the question, and his decision on this question becomes final.

But where the teriant does not appear in sec. 105 proceedings and no question is a as to the nishkar character of the land, the Revenue Officer is not concerned to decide the question. He merely settles the fair and equitable rent. His decision is confined solely to the question of the amount of fair and equitable rent of the holding which was the only matter before him. The finality provided for in sec. 107 is limited in such cases, to the determination of the quantum of fair and equitable rent.

Sec. 109 of the Bengal Tenancy Act is also of no help to the Appellant. It rather supports the view taken above.

The relevant portion of sec. 109 reads as follows:-

Subject to the provisions of sec. 115C, 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 inclusive.

Provided that nothing contained in the section shall debar a Civil Court from entertaining a suit concerning any matter which

(a).....

(b) has not been finally adjudicated upon in any such proceeding or suit.

The bar imposed by the section has reference to the matter which was the subject of the application under sec. 105 and was finally adjudicated upon.

As already pointed out, the subject-matter of the application under sec. 105 is only the settlement of fair and equitable rent, where no issue under sec. 105A arises. It is only the matter of fixing the fair and equitable rent which is finally adjudicated upon in such cases.

The conclusion, therefore, follows that an ex parte order under sec. 105 of the Bengal Tenancy Act settling a fair and equitable rent in respect of the land held by the tenant is final only on this matter and is not final as regards the issues mentioned in cls. (a) to (g) of sec. 105A unless such issues arise in the course of the 105 proceedings.

The decisions of this Court which have taken a contrary view must be deemed to have been wrongly decided and are overruled.

The question referred to the Full Bench is answered accordingly.

In the present case, the ex parte order under sec. 105 does not show that the issue as to the nishkar character of the holding arose before the Revenue Officer or that he decided the same. The ex parte order is not accordingly binding on the Plaintiff as regards the nishkar right claimed.

As the question arose in a second appeal, the whole appeal was referred to the Full Bench.

The finding of the lower Appellate Court is that the Plaintiff acquired the nishkar right on the basis of a lost grant. This finding is based on two facts, viz., an admission made by an authorised agent of the landlord in a cess return filed in 1925 and the long possession of the Plaintiff and his predecessors in interest for 40|50 years without any demand or payment of rent to the landlord.

It is not disputed on behalf of the Appellant that these facts are sufficient to support the finding of the Subordinate Judge as regards the nishkar right of the Plaintiff.

It was first contended that the findings of fact are not supported by the evidence on record.

The learned Subordinate Judge has referred to the evidence in support of his findings. As such his conclusions based on evidence relevant and admissible in law, cannot be assailed in second appeal.

It was next contended that it was not open to the Subordinate Judge to inquire into a case of acquisition of nishkar right on the basis of a lost grant, as there was no such case raised in the plaint.

A perusal of the plaint, however, makes it abundantly clear that necessary averments in proof of such a title were made in the plaint. The plaint recited long possession without payment of rent in assertion of a nishkar right and referred to the admission of nishkar right by the landlord in the cess return. The plea was also debated in both the Courts below.

There is thus no substance in this contention.

It was finally contended that the decree is not correct in so far as it declares the inoperativeness of the sec. 105 proceedings. The meaning of this declaration is clear. What the Subordinate Judge meant is that the ex parte order in the sec. 105 proceedings does not affect the nishkar right of the Plaintiff.

The result is that this appeal fails and is dismissed. The Plaintiff is entitled to his costs of the hearing before us and before the Division Bench.

Harries C.J.

I agree.

Banerjee, J.

I agree with Das, J., in the answers he has given. I desire to add a few words.

Sec. 109 of the Bengal Tenancy Act provides that 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) : Provided that nothing in the section shall debar a Civil Court from entertaining a suit concerning any matter which (a) was the subject-matter of an application under sec. 105, or sec. 105A, or of a suit under sec. 106, if such application or suit has been dismissed for default or withdrawn, or (b) has not been finally adjudicated upon in any such proceeding or suit. In other words, the decision of the Revenue Officer is final.

Of course this is subject to the provisions of sec. 115C, which provides for appeals from decisions of Revenue Officers. It is well settled that when an appeal is preferred, the order or decree against which the appeal is preferred loses its finality. The decree or order of the Appellate tribunal supersedes the decree or order of the Court below. Subject to this, sec. 109 makes the matter adjudicated upon by the Revenue Officer final. The words in the section "which is", read with the words of proviso (b) make it clear that until there is adjudication upon a matter by a Revenue Officer, the Civil Court is not deprived of its jurisdiction to entertain a suit concerning the matter.

In this case the Revenue Officer settled a fair and equitable rent for the land in question. That finding implies that the land in question is liable to the payment of rent. But the question before us is whether this liability is finally determined and cannot be questioned in any Civil Court.

The solution of this problem is afforded by sec. 105A.

Ordinarily, decision of a revenue Court on a question of title is no bar to the trial of the same question by the ordinary Civil Court. The legislature, however, can empower the revenue Court to determine questions of title so as to constitute it potato a Civil Court. Revenue Courts are chiefly Courts of jurisdiction limited to adjudicate upon questions of rent, tenure, etc. There are. however, some matters of which the decision by revenue Court is expressly declared by the Act constituting the revenue Court to have the force of a decree in a civil suit, and some as to which it is declared that the decision shall be final. In such cases, the decision of a revenue Court will operate as res judicata so as to bar the trial of the same matter in a Civil Court.

Under sec. 105 of the Bengal Tenancy Act, an application can be made for settlement of a fair and equitable rent by a Revenue Officer, in cases where settlement of land revenue is not being or is not about to be made. His only duty, therefore, is to settle the rent and nothing else. But sec. 105A says that where in any proceeding for the settlement of rent under this part (Chapter X) any of the issues specified in that section arise, "the Revenue Officer shall try and decide such issue and settle the rent under sec. 105". One of the issues specified is (a) whether the land is or is not liable to the payment of rent.

The section is mandatory. The words are "the Revenue Officer shall try and decide... ". The Revenue Officer unit try and decide the issue. In other words the legislature expressly empowers and directs the Revenue Court to decide the issue and he must do it. But he can do so only when the issue arises and not otherwise. Now, when does an issue arise? Issues arise when a material proposition of fact or law affirmed by one party is denied by the other. It follows, therefore, that when a matter is heard ex parte and there is no denial of a fact or a proposition of law, no issue arises. If, therefore, to a landlord''s application for settlement of a fair and equitable rent there is no appearance, the tenant does not deny the facts stated in the application and there is no issue to try. But some of the decisions of our Court have applied the principle of constructive res judicata in such cases. They proceed on the principle that the matter is constructively in issue. A matter is said to be constructively m issue when it might and ought to have been made a ground of attack or defence. Matters are actually in issue when they are actually alleged by one party and denied by the other. But it often happens that a matter which might and ought to have been made a ground of attack by the Plaintiff to entitle him to the relief he claims in the suit is not actually alleged by him as a ground of attack. Likewise it happens that a matter which might and ought to have been made a ground of defence by the Defendant is not actually set up by him as a ground of defence. In such cases the Explanation 4 to sec. 11, Civil Procedure Code, says that a matter, which might and ought to have been made a ground of attack or defence in the former suit but winch has not been actually alleged as a ground of attack or defence, will be deemed to have been a matter directly and substantially in issue in such suit, in other words, though it is not actually in issue, it is regarded as being in issue. The word "deem '' suggests that is not; but it is regarded as being in issue and is deemed to have been decided. Can we apply this principle to an issue which does not actually arise in any of the proceedings under sees. 105 to 108 of the Bengal Tenancy Act? Sec. 105A nowhere empowers the Revenue Court to decide any of the matters specified in that section until and unless it arises. There is no suggestion any where in the section that a Revenue Officer can decide a matter which does not actually arise but may be ''deemed'' to have arisen.

A tribunal is competent only to decide matters which the legislature commits to its decision and no other. Its jurisdiction must be found within the four corners of the enactment which confers the jurisdiction. Having regard to what 1 have said and to the nature of a Revenue Court I am unable to hold that a Revenue Office is entitled to try and decide any matter specified in sec. 105A which does not actually arise before him. In other words my view is that the doctrine of constructive res judicata does not apply to a decision of a Revenue Officer on any matter mentioned in sec, 105A.

During the argument an illustration was taken which is as follows: Suppose, a matter does not actually arise, that is to say, it is not actually stated or traversed, but the Revenue Officer of his own accord raises an issue and actually tries and decides it. Will that be res judicata in a suit? I am clear in my own mind that the answer must be in the negative. But it is not necessary to express any final opinion on this point because in this case the question as to whether the land in question is liable or not to pay rent was not raised and/or tried and/or decided. That is admitted by Appellant''s Counsel. I am, therefore, of opinion that the Civil Court can entertain the suit for a declaration that the land in question is not liable to pay any rent. I concur in the answers given.