P L D 1955 Dacca 35 (PLP)

IBRAHIM, J.--‑This second appeal has been brought by the plaintiffs. The dispute is over C. S. plot No. 380 in khatian No. 353 of mouja Khalishakhali, which appertains to taluk Indra Narain Das. It is a silted up tank to the adjacent east of C. S. plot No. 232 which is in the joint possession of ga, uma, cha, chha and ja groups of defendants as their homestead. These defendants are co‑sharers in taluk Indra Narain Das. Khosal, who belonged to the cha~ group of defendants, had 8 gds. 3 karas 1 krants share in the taluk. The share of Khosal was acquired by Lalit, plaintiff No. 1, and Debendra, father of plaintiffs Nos. 2 and 3, by purchase. During the settlement operation the tank was recorded in the exclusive possession of Tarak Bandhu, grandson of Khosal who had died in the mean time. This was before the final publication of the record of rights. Lalit and Debendra put in an objection under section 103A of the Bengal Tenancy Act, asking to be recorded in the cha group of defendants in place of Tarak Bandhu on the ground that they had purchased the interest of Khosal. This prayer was allowed; but the records were finally published without making the necessary correction. Debendra and Lalit then instituted another proceeding, and the entry was cor rected on the 11th of August, 1927, on the ground that the omission was due to a clerical mistake. The actual order directing the correction was this: " The name of Tarak Bandhu Sen will not appear. in cha group of C. S. K. 353 and that the share recorded in his name in this group will be distributed amongst the 2 petitioners each getting half of it, this name appearing instead in this group." The plaintiffs instituted this suit for confirmation of their exclusive possession in the suit land on declaration of their title to 8 gds 3 karas 1 krant share in taluk Indra Narain Das, on the allegation that they were in exclusive possession, and that the defendants disturbed their possession by digging earth on the 27th of May, 1945. . The defence case is that the tank is in the joint possession of the ga, uma, cha, chha and ja groups of defendants, and that the plaintiffs are entitled to joint posses sion with them to the extent of Khosla's share which they have acquired. It is not disputed that the plaintiffs are entitled to exclusive possession, if they were in such possession before the alleged disturbance. The trial Court declared the plaintiffs' title to the 8 gds. 3 karas 1 kraut share in the taluk and gave a decree for khas possession. On appeal the learned Subordinate judge upheld the decree as regards title but held that the tank was in joint possession of the ga, umb, cha, chha and ja groups of defend ants, and that the plaintiffs, having purchased Khosla's share, were entitled to joint possession with other defendants of these groups; and he modified the decree of the trial Court accordingly. It is contended by Mr. Narendra Chandra Chakravarty that the record of rights showing exclusive possession of the appellants must prevail inasmuch as the order of the Revenue Officer correcting the entry operates as res judicata. It is not disputed that the question whether the plaintiffs were entitled to exclusive possession or not was not directly raised in the proceedings before the Revenue Officer; but Mr. Chakravarty's argument is that his decision operates as constructive res judi cata. In support of his argument Mr. Chakravarti has relied on Chandi Charan Law v. Lal Bewa and others (A I R 1929 Cal. 385). But in that case no question of constructive res judicata was involved. Mr. Sabita Ranjan Pal on behalf of the respondents has referred to Rai Upendra Lal Roy Bahadur and another v. BiYendra Lai Das and another (52 C W N 218.) and Siva Prosad Choudhury and others v. Jitendra Nath Ghosal and others (55 C W N 313 (FB)) in support of his conten tion that the decision of the Revenue Officer cannot operate as constructive res judicata. The reference to these cases has been made on the footing that the 'decision of the Revenue Officer was made under section 106 of the Bengal Tenancy Act. On that footing the two cases referred to by Mr. Pal has no direct bearing inasmuch as what was decided in these two cases was that a decision of a Revenue Officer under section 105 could not operate as constructive res judicata in respect of matters enumerated in section 105A. The learned Subordinate Judge did not proceed on the footing that the order was made under section 106 ; he treated it as an order under section

108. Obviously, it could not come under section 108, and neither party has attempted to support the view taken by the learned Subordinate Judge. The revisional power conferred by section 108 is limited in its scope to orders or decisions under sections 105, 105A, 106 and

107. What the Revenue Officer revised was not an order or decision under any of these sections but an entry which had been ordered on an application under section 103A to be corrected but was not corrected. Mr. Pal says that the order was passed under section 108A which is now numbered as section 115B. It cannot be disputed that no question of constructive res judicata can arise, if the order was passed under section 108A. The order‑sheet shows that the proceeding was recorded as a suit. That is the reason why Mr. Chakravarty says that the order was passed under section

106. Assuming that the order was passed under section 106, the question arises whether the decision operates as construc tive res judicata. A decision under section 106 has been given the force and effect of a decree of a Civil Court by section

107. But in order to decide as to what extent such a decision bars the jurisdiction of the Civil 'Court, section 107 must be read with the proviso to section

109. Before this proviso was intro duced, the Civil Court was debarred from entertaining any application or suit concerning any matter which is or has already been the subject of an application made, a suit insti tuted, or a proceeding taken under sections 105 to 108, both as inclusive. Not only a decision under section 106, but also the very fact of a matter being the subject of an application or suit under sections 105 to 108 was a bar to the cognizance of the same matter by the Civil Court. This position has been a substantially altered by the introduction of the proviso which runs as follows: " Provided that nothing contained in this section shall debar a Civil Court from entertaining suit concerning any matter which‑ (a) was the subject‑matter of an application under sec tion 105 or section 105A or of a suit under section 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." The position now is that if an application under section 106 is withdrawn or dismissed for default, or, if any matter raised in that application has not been finally adjudicated upon, the jurisdiction of the Civil Court is not ousted. Clause (b) of the proviso makes it clear that if two matters are raised in a suit under section 106, of which one is finally decided and the other is not, the jurisdiction of the Civil Court is not ousted in A respect of the matter not decided. That being the position, a matter which was not only not decided but not at all raised, cannot be res judicata constructively, so .as to deprive the Civil Court of its jurisdiction. The words "nothing contained in this section," which qualify this proviso, cannot, to my mind be read as meaning that anything in section 107 can override it. In Upendra Lal Roy's case the learned Judges observed: " ... the principle of constructive res judicata cannot be invoked on the strength of a decision given by a Revenue Officer if the legislature has expressed the intention of allow ing a suit to be brought in respect of the matter after the decision of the Revenue Officer. Before its amendment in 1929, section 109 was couched in terms of prohibition. After the decision of the Full Bench in Purna Chandra Chatterjee v. Narendra Nath Chowdhury (I L R 52 Cal. 894.) and with the primary intention to nullify its effect, section 109 was amended by the Act of 1928. That amendment brought in the two provisos. The first proviso had the effect of nullifying the effect of the Full Bench decision but the second proviso went further. That proviso taken with the last part of section 107 has the effect of making the decision of a Revenue Officer final only when that officer had actually adjudicated upon the matter. This gives some indication of the intention of the legislature to the effect that the doctrine of constructive res judicata was not to be applied on the strength of decisions of Revenue Officers in proceedings under sections 105 to 108." In my opinion, a decision under section 106 cannot operate as constructive res judicata. The contention of Mr. Chakravarti, therefore, fails. The other point taken by Mr. Chakravarti is that the judgment under appeal is not a proper judgment of reversal. *To dispose of this contention certain further facts are to be stated. The defendants and the plaintiffs are all co‑sharers in taluk Indra Narain Das. The plaintiffs' case was that there had been a partition among the co‑sharers and separate groups of co‑sharers were in possession of separate lands. Some of the lands were iri exclusive possession of some of the co sharers. It has been found that the plaintiffs and one Raicharan formed one group and are in joint possession of homestead plot No., 231 ; the defendants of groups ga, uma, cha, chha and ja are in possession of homestead plot No. 232 and the defendants of groups jha, neo, ta, thha and da are in possession of homestead plot No.

235. To the.east of each of these homesteads there is a tank. The tank in dispute in this suit, as already stated, is to the east of homestead plot No.

232. In deciding the question whether this tank was in the exclusive possession of the cha defendants or in the joint pos session of the ga, uma, cha, chha and ja groups of defendants, the learned Subordinate judge has thoroughly discussed the evidence. What Mr. Chakravarti complains of, is that he overlooked the evidence showing that some defendants of these groups were in exclusive possession of some lands in spite of the fact that they were in joint possession of the homestead plot. But the evidence that some of these defendants are in exclusive possession of some lands, is counter‑balanced by the fact that all these defendants are in joint possession of other lands. Where sortie lands are in exclusive possession of different co‑sharers and some in their joint possession, the evidence as to the nature of possession, in one land is hardly of any cogency as regards the nature of possession in another. In such a case the question of possession should be decided on the evidence relating to the particular land. The omission complained of does not vitiate the finding of the learned Subordinate Judge who has directed his attention quite thoroughly to the evidence relating directly to the question of possession in the land in suit. The appeal fails and is dismissed with costs. A. H. Appeal dismissed.