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Civil Appeal from Appellate Decree No. 309 of 1961, decided on 22nd June 1965.

and Civil Procedure Code (V of 1908), S. II‑Res judicata‑Decision under S. 106 in dispute between tenants‑Does not operate as res judicata in subsequent suit between same parties in civil Court‑jurisdiction of Revenue Officer under S. 106 confined to decision' regarding correctness of entry in Record‑of‑Rights‑Such decision no bar to subsequent suit for confirmation of title and possession‑Regulation of disputes between rival tenants‑No purpose of Bengal Tenancy Act, 1885,

The decision under section 106 of the Bengal Tenancy Act in a dispute between tenants does not operate as res judicata in a subsequent suit between the same parties in a civil Court. The jurisdiction of the Revenue Officer under section 106 of the Bengal Tenancy Act is confined to a decision on the point whether the entry in the record‑of‑rights is correct or not. Supposing he holds that the entry is correct, as has been done in the present case that does not bar the plaintiffs from bringing a suit in civil Court to have their title declared and possession confirmed. It is not purpose of the Bengal Tenancy Act, 1885 to regulate dispute between rival tenants.

Joypal Dhobi v. Mohunt Palukdhari Das 2 C W N 491; Chand Charan Law v Sm. Lal Bewa and others 33 C W N 623 and Lalit Mohan Das Gupta and others v. Nalinibala Das Gupta and others 3 P L R Dacca 70 distinguished.

Pandit Sardar v. Meajan Mirdha I L R Cal. 21; Aswini Kumar Aich v. Saroda Chanran Basi and others 24 C L J 79 and Ram Chandra Bahanja v. Nandananda Gossain 18 C W N 938 rel.

‑Second appeal‑Finding of fact‑Cannot be challenged in second appeal.

‑Exchange Oral exchange of land‑Exchange not effected by registered instrument‑Does not create any interest or valid title.

Jahurol Huq Khan for Appellant.

Nemo for Respondents.

Jafar Ahmad for the Deputy Registrar.

This appeal arises out of a suit for confirmation of possession on declaration of right and title of the plaintiffs in the case land. The case land corresponds to the extreme southern '7 acre portion of C. S. plot No. 1162, appertaining to C. Khatian No. 28 of Mouza. Narikalbari. C. S. plot No. 1162 corresponds to R. S. Plot No. 1181 recorded in Khatian No. 732/1 of the said Mouza. The case of the plaintiffs is that the two brothers Madan and Jamiruddin had a raiyati jama of Rs. 6, under Gopal Chandra Choudhury, with the area of 5'47 acre of land in two Mouzas, namely, Narikalbari and Batbari. The suit land appertains to this jama. Madan had 3rd share in the holding and Jamiruddin had 1/3rd share in it. Modan died leaving sons Elemuddin and three others. Gopal Chandra Choudhury, the landlord over the holding got a decree for arrears of rent of this holding. The holding was sold away in Rent Execution Case No. 700 of 1924 of Second Munsiff's Court, Madaripur. Miajan purchased it in the Court‑sale on 23‑1-1925. Miajan took delivery of possession of the holding through Court on 19‑4‑1925. As judgment‑debtors created disturbance relating to the possession of Miajan, he and plaintiff No. 1 brought Title Suit No. 220 of 1931 for declaration of their title and confirmation of possession in the land. Miajan was father of plaintiffs Nos. 2 to 6, husband of plaintiff No. 6 (a) and uncle of plaintiff No. 1. The suit was compromised. By the com promise, plaintiffs got the case land. Elemuddin and others got '52 acre portion of the case land just to the north of the case land but through mistake, the case land was not recorded in the names of the plaintiffs. It has been recorded as the kol‑raiyati of the defendants. Plaintiffs brought a case under section 106 of the Bengal Tenancy Act for correction of the record but the case was dismissed. Although plaintiffs have been in possession of the case land, defendants threatened to dispossess. Hence the suit.

Defendant No. 1 contested the suit. Defence is that defendant No. 1, late Akkas Ali and his cousin Mobarak Ali obtained a decree in Money Suit No. 101 of 1926 of the Court of Additional Munsif, Gopalganj against Elemuddin Karikar, Joynal Karikar and Charu Karikar and purchased 1/3rd share of a jama of Rs. 8 in Money Execution Case No. 14 of 1929 on 23‑1‑1930. They took delivery of possession of this land through Court on 16‑3‑1931. Mobarak Ali gave up his interest in the auction purchased land and defendant No. 1 and Akkas Ali began to possess it. Defendant No. 1 and Akkas Ali exchanged this land for the disputed land, which the plaintiffs got by compromise in Title Suit No. 220 of 1931. Since the exchange, defendants have been in possession of this land. This land has been recorded in a separate Khatian under the landlord. It is asserted that the present suit is barred by the principle of res judicata as plaintiffs' case under section 106 of the Bengal Tenancy Act was dismissed. Defendant also. raised the plea that the suit was barred by limitation.

The learned Munsif, on a consideration of the evidence held that defendants got the case land by exchange from plaintiffs and that they were in possession of the land. It was also held that the R. S. record was correct and that the decision relating to possession under section 106 of the Bengal Tenancy Act operated as res judicata. It was also held that the suit was barred by limitation. Accordingly, the suit was dismissed.

On appeal, the learned Subordinate Judge held that defen dants did not get the land by exchange from the plaintiffs and that they did not possess it. It was also held that plaintiffs were in possession of the case land. The learned Subordinate Judge was also of opinion that the suit was not barred by res judicata. Accordingly, it was held that plaintiffs had their right and title in the case land. The decision of the learned Munsif was reversed, the appeal was allowed and the suit was decreed. Hence the second appeal at the instance of defendant No. 1.

Mr. Jahurol Huq Khan, learned Advocate on behalf of the appellant has contended that the lower appellate Court erred in law in holding that the suit was not barred by res judicata. The contention of the learned Advocate is that the suit is barred by res judicata because plaintiffs' suit under section 106 of the Bengal Tenancy Act was dismissed. In support of his contention the learned Advocate has referred to the cases in 2 C W N 491; 33 C W N 23 and 3 P L R Dacca 70.

In the case of Joypal Dhobi v. Mohunt Palukdhari Das (2 C W N 491) it has been held that the decision of the Revenue Officer under section 106 of the Bengal Tenancy Act in a dispute between a landlord and a tenent operates as res judicata between the same parties in a subsequent suit in the civil case. But the decision in the present case under section 106 of the Bengal Tenancy Act was in a dispute between tenants.

In the case of Chand Charan Law v. Sm. Lal Bewa and others (33 C W N 623) also the decision under section 106 of the Bengal Tenancy Act was in a dispute between the landlord and tenants.

In the case of Lalit Mohan Das Gupta and others v. Nalinibala Dos Gupta and others (3 P L R Dacca 70) it has been held that before the introduction of the provision to section 109 of the Bengal Tenancy Act, decision under section 106 of the Act would operate as a bar to the cognizance of the same matter by the civil Court but that after the introduction of the said proviso the decision under section 106 could not operate as constructive res judicata. The principles laid down in the above mentioned cases are of no assistance to the appellant in this case.

The decision under section 106 of the Bengal Tenancy Ac in a dispute between tenants does no: operate as res judicata in a subsequent suit between the same parties in a Civil Court. This view finds support in the case of Pundit Sardar v. Meajan Mirdha (I L R Cal. 21) reference to which has been made in the case in 2 C W N 491.

The present suit is one for confirmation of possession on declaration of title. These matters are entirely foreign to the jurisdiction of the Revenue Officer under section 106 of the Bengal Tenancy Act. The jurisdiction of the Revenue Office under section 106 of the Bengal Tenancy Act is confined to a decision on the point whether the entry in the record‑of‑rights is correct or not. Supposing he holds that the entry is correct, as n has been done in the present case that does not bar the plaintiffs from bringing a suit in civil Court to have their title declared and possession confirmed. (See Aswini Kumar Aich v. Sarod Chanran Basi and others (24 C 4 J 79).

In the case of Ram Chandra Bahanjav. Nandananda Gossain (18 C W N 938) it has been observed that the Bengal Tenancy Act deals with the relations between landlords and tenants and that it is no part of its purpose to regulate the dispute between rival proprietors. From the same principle it would follow that it is no purpose of the Act to regulate dispute between rival tenants. I cannot accept the contention that the decision under section 106 of the Bengal Tenancy Act operates as res judicata in a subsequent suit in the civil Court between the parties, when the parties are tenants.

It has been argued that the learned Subordinate Judge misconceived the defence case relating to exchange in not holding that the exchange was relating to the case land, for 77 acre portion of the land of defendants recorded in Khatians Nos. 734, 797 and 309, and in holding that the exchange was with regard to '52 acre portion of C. S. plot No. 1162. The judgment does not indicate that the learned Subordinate Judge misconceived the decree case. The learned Subordinate Judge, on discussion of evidence found that the exchange was with regard to '52 acre portion of plot No. 1162. Moreover, this is a finding relating to a fact and cannot be challenged in second appeal.

Mr. Khan has also contended that the learned Subordinate Judge erred in law in holding from jute licenses Exh. 6 series and the receipt Exh. 5 showing payment of fees that plaintiffs were in possession of the case land, although these were not admissible in evidence. But the finding that plaintiffs have been in possession of the case land is not based on Exhs. 5 and 6 series only. The learned Subordinate Judge considered the oral evidence on both sides and on oral evidence held that plaintiffs were in possession of the case land.

The learned Advocate has also contended that the lower appellate Court erred in law in holding that there could not be any oral exchange and it could not create title in view of the provisions of section 118 of the Transfer of Property Act. For the reasons that there was exchange, it would not follow that it was a valid exchange. As the exchange was not effected by a registered instrument, it would not create any interest in favour of the defendants even if the exchange had been relating to the/ case land. It was not according to law and no valid title could be created on the basis of the oral exchange.

There is no ground to interfere with the decision of the learned Subordinate Judge.

The appeal is dismissed and the judgment and decree passed by the lower appellate Court are affirmed. I pass no order as to costs as none appeared on behalf of the respondents.

The learned Advocate on behalf of the appellant has prayed for leave to appeal under clause 15 of the Letters Patent. The prayer is refused.

A. E./S. A. H.

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