JUDGMENT

Stevens, J. - This appeal was originally heard by a Division Bench of this Court consisting of Ghose and Brett, JJ. In consequence of a difference of opinion between those two learned Judges it has been referred for rehearing under the provisions of Section 575 of the CPC to this Bench, which has been specially constituted for the purpose.

2. The second Plaintiff and the Defendant, Jamini Kanta Lahiri Chowdhuri, who is called in the plaint the pro forma Defendant, are the proprietors of mama Sahildeo in the district of Mymensingh. The first Plaintiff has obtained from the latter a putni of his share in the village, amounting to one-half. Before the grant of the putni the proforma, Defendant joined with the second Plaintiff's predecessors in title in making an application, under. Section 103 of the Bengal Tenancy Act, 1885 (before; the amendment of the Act). The application itself is not before us; but we find it described in the judgments of the Special Judge and of this Court, respectively, in the proceedings which arose out of it as an application "for the measurement and preparation of a record of rights" in respect of the lands situated in the mauza. In paragraph 6 of the plaint in the present suit it is stated that the Applicants, "having been unable to measure the lands of the aforesaid mauza Sahildeo, to effect a settlement with the tenants, jointly applied to the Collector of Mymensingh for the preparation of a record of rights in respect of the said mauza under Chapter X of the Bengal Tenancy Act, VIII of 1885," and it is further stated that "thereupon the lands of the said mauza were measured and chittas, khatians and other papers were prepared in connection therewith."

3. It appears that certain land, in area about 592 bighas, which had been measured by the amin as being liable to the payment of ordinary rent, was claimed by the original principal Defendants in the present suit as being their mukarari chakk holding at a fixed rent, while the proprietors of the Mauza maintained that they were not tenants at all, but were trespassers. The Settlement Officer in charge of the proceedings heard and decided the dispute under the provisions of Section 106 of the Act, the decision to which he came being that the claimants did in fact hold about 156 bighas out of the area in question on the title which they set tip. Both parties appealed to the Special Judge under the provisions of Sub-section (2) of Section 108 of the Act, with the result that that officer's decision was in favour of the claimants to the full extent of their claim. The proprietors then preferred a second appeal to this Court under Sub-section (8) of Section 108 of the Act. That appeal was dismissed on the ground that the judgment of the Special Judge disclosed no error of law.

4. The present suit was then brought with alternative prayers (a) for ejectment and mesne profits with a declaration of the right of the Plaintiffs to the land in dispute and a further declaration that the principal Defendants have no mukarari chakk right or tenancy right in the land, or (b) for a declaration that the Plaintiffs are entitled to get a fair and reasonable rent on account of the same. The plaint sets forth the case of the Plaintiffs upon the merits of the dispute and in the twelfth paragraph the decision of the Settlement Officer is referred to as follows:

Defendants Nos. 1 and 2 being wrongfully in possession of the lands and there being no relationship of landlord and tenant between the Plaintiffs and the said Defendants, the Settlement Officer had no jurisdiction to decide any question between the parties in respect of the said lands. And the decision in the record of rights proceeding can be no bar to a title suit under the ordinary law of the land.

5. After a protracted trial the suit was dismissed 'without' any decision on the merits, upon the ground that the decision in the case under Chapter X of the Bengal Tenancy Act operated as res judicata under the provi