Macpherson, J.There was a civil Court partition in mauza Kazipur Belahri in which lands shown in the record of rights as bakasht malik in the name of one co-sharer fell into the patti of one or more other co-shsarers. The latter either took possession of or instituted suits against, the former for possession of the land falling in their respective pattis which had been so recorded, Most of the litigation has been disposed of either in first or second appeal, generally on findings of fact. In these two second appeals a common question of law arises for determination, and they have accordingly been heard together. The decisions under appeals were passed by the same appeal late Court on successive days.

2. The appellants in the two appeals are different, but the respondents are the same. The appellants instituted suits against the respondents for ejectment of the latter from the lands in suit and for recovery of rent from them if they could not be ejected. The Counts below held that the appellants were not entitled to eject but granted them decrees against the defendants for rent.

In second appeal the plaintiffs claim that on the admissible findings of fact they are entitled to eject. The lands in dispute were entered in the record of rights finally published in 1914 as bakasht malik in the name of the defendants. The civil Court partition of the village sought in Suit No. 141 of 1913 was effected on the basis of the record of rights and was completed in 1916. The lands in suit foil in the pattis of the respective plaintiffs, but defendants retained possession. In the suits the plaintiffs in each case claimed that they were bakasht of the landlords and that the defendants could have no right to retain possession of them after they had been allotted to the respective pattis of the plaintiffs and all the co-sharers had entered on the pattis respectively allotted to them.

The defence was that the lands were the ancestral kasht land pi the defendants which they had held as such before they acquired in 1904 an interest in the village as proprietor or permanent tenure-holder.

3. It falls to be mentioned that, after the final publication of the record of rights the defendants brought suits u/s 106 of the Bengal Tenancy Act for a declaration that the lands now in suit were not bakasht malik as entered in the record of rights, and that their status in respect of them was that of kaimiraiyats and it should have been so recorded. If the lands had been adjudged kaimi kasht, they would of course have been entered in a separate raiyati, khatian and have been shown as kaimi. Those suits, though ex parte, were dismissed because defendants (then plaintiffs) failed to prove that the plots shown as bakasht malik were within the raiyati holding which they held before the date when they became interested in the mauza as proprietors or permanent tenure holders.

4. The learned Munsif in elaborate judgments found that the defendants had in his Court been able to identify the lands in dispute as raiyati kasht lands held by them prior to the time when they became co-sharer landlords, as they had not been able to do before the revenue officer in their suits u/s 106, but he held that by virtue of Section 107 of the Bengal Tenancy Act they were precluded from taking the defence that the lands were their raiyati kasht. He proceeded, however, to hold that the lands were not bakasht of the proprietors, but that defendants (contrary to the case made by themselves) held in the lands the interest referred to in Section 22(2) of the Bengal Tenancy Act. Such an interest has in several recent decisions of this Court been held to entitle the holder thereof to retain possession of the land even when on partition it has been allotted to the patti of another proprietor subject of course to payment of the "rent" of the anomalous tenancy to the new sole landlord, and though personally I entertain doubt as to the correctness of that view, at least in all cases, it is binding on this Bench. Applying that view of the law to his finding that defendants had the interest referred to in Section 22(2), the learned Munsif dismissed the claims for ejectment and granted decrees for rent only. The plaintiffs appealed.

5. In the appeal of Lalji Singh and others (appellants in appeal No. 1025) the learned Subordinate Judge found that the lands were in fact the kasht lands of the defendants held by them for the last forty-five years, that is to say, from a date long prior to their acquisition of a proprietary interest in 1904, and that the judgments in the suits u/s 106 of the Bengal Tenancy Act being erroneous, they could not, in spite of the provisions of Section 107, operate as res-judicata. Thus the lands were not merely proprietors private lands and the defendants could not be ejected. He also found that the lands in suit could not on the evidence of the defendants, which had been accepted, come within the provisions of Section 22(2). Indeed, on the facts found by him, the occupancy right in them had not been transferred to the defendants at he time when they were jointly interested in the land as proprietors or permanent tenure-holders, but long before that period, so that Section 22(2) could not be applicable.

6. In the other appeal the decision in which is contested in Appeal No. 1055, the appellate Court held that the land was not merely bakasht malik, but the defendants kasht held by them long before they acquired a mukarrari interest in 1904, and that the case came under the provisions of Section 22, Clause (2) of the Bengal Tenancy Act. Such a finding is obviously self-contradictory. Section 22(2) is not concerned with the raiyati kasht of a proprietor or permanent tenure-holder which he held before he became proprietor or permanent tenure-holder, but with land the occupancy right in which was transferred to him after ha became jointly interested as proprietor or permanent tenure holder. It was however the case of the defendants that they held u/s 22(2); they resisted the suits on the plea that the lands were their kaimi kasht lands. The finding of fact being that the lands were, as alleged by them, their kaimi kasht prior to the date when Section 22(2) could operate, the Munsif is wrong in law in referring to Section 22(2) in the circumstances. Furthermore, there is absolutely no evidence upon which it could be held that these lands were acquired by the defendants between 1904 and the date of preparation of the record of rights; in fact, it has been definitely found by the appellate Court that they held the lands as raiyati before and after 1904. Thus the facts are that the lands in suit are not of the type of bakasht malik lands which u/s 22(2), as interpreted in this Court, will not pass to the landlord into whose patti they fall on partition.

7. In second appeal it is urged on behalf of the appellants that the learned Subordinate Judge has erred in law in holding that Section 107 was not a bar to the only defence of the defendants which has been found to be established on the facts. The suits u/s 106 for a declaration that the lands in suit were not bakasht malik but were the kaimi kasht of the defendants were dismissed and the decrees stand. On behalf of the respondents it is urged that the same plea may nevertheless be raised as a defence to a suit in ejectment, and reliance is placed on the decision in Rajendra Narain Mazumdar Choudhury and Others Vs. Sheikh Kalim and Others, . Now Section 107 lays, down that the decision of a revenue officer in every proceeding u/s 105, Section 105A and Section 106 shall have the force and effect of a decree of a civil Court in a suit between the parties, and subject to the provisions of Sections 108 and 109A, shall be final; and Section 109 enacts that subject to the provisions of Section 109A, 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 Sections 105 to 108 (both inclusive).

8. In the decision cited it was held that what was barred u/s 109 was the entertainment of an application and not the entertainment of a defence to an action. But in the first place, this expression of opinion appears to have been obiter since the claim of the plaintiffs for rent at the rate at which it had been settled u/s 105 of the Bengal Tenancy Act failed on the simple ground that u/s 110 the new rent took effect from a date long after the period in respect of which rent was claimed in the suit, Accordingly the question now under discussion did not arise for determination. But apart from that fact, the matter has already been exhaustively considered by a Bench of this Court in Mahendra Narain Ray v. Girish Chandra Kar [1918] 3 Pat. LJ 379. There the learned Judges held that where in a proceeding u/s 105A of the Bengal Tenancy Act, it has been found that the relationship of landlord and tenant does not exist between the parties, that decision operate as res judicata, and the defendants are not entitled in a suit for ejectment by the landlord to re-agitate the question. The learned Judges discussed the full Bench decision in Dharani Kanta Lahiri v. Gaber Ali Khan [1903] 30 Cal. 339, and the remarks of their Lordships of the Judicial Committee in Gokul Mandar v. Pudmanund Sing [1902] 29 Cal. 707 and pointed out that the words "and shall be final" were imported into Section 107 by the amending Act of 1907 with a view to give finality to a decision arrived at by a Revenue Court or by a Special Judge on appeal.

9. Manifestly that decision with which with much respect, I agree, completely covers the circumstances of the present appeals. The defendants-respondents cannot be heard to say that the lands in suit are their raiyati kasht. It has been shown that the defendants have no claim to hold them under the provisions of Section 22(2). It is not even alleged that the lands belong to any other category of bakasht malik of which the defendants would be entitled to remain in possession, when it fell on partition into the patti of another proprietor. Accordingly the plaintiffs are entitled to khas possession of the lands in suit as bakasht of the proprietors.

10. These appeals are accordingly allowed and the suits are decreed with costs in all three Courts.

11. The plaintiffs will recover khas possession of the lands in suit, with mesne profits, and interest at six percent per annum on mesne profits and costs till realization.

Jwala Prasad, J.

I agree.