Mukerji, J.@mdashThe plaintiffs who are dar-ijaradars of a mahal instituted this suit for recovery of arrears of rent at the rate of Rs. 38 6-6 for the
years 1327 to 1330 B.S. for a certain holding. The defendant alleged that the rent was Rs. 26 and was recorded as such in the settlement khatian
and that as a result of proceedings u/s 105, Ben. Ten, Act, the said rent was enhanced to Rs. 2910-6 the enhancement operating from 1328.
There was also a plea of deduction which, however, was given up The Munsif decreed the suit at the rate of Rs. 38-6-6 for the year 1327 B.S.
and at the rate of Rs. 29-10-6 for the years 1328 to 1330 B. S. The Subordinate Judge on appeal by the plaintiffs gave them a decree for all the
years at the rate of Es 38-6-6. The defendants have then appealed to this Court.
2. The Subordinate Judge has found the following facts : The mahal in which the holding in suit is situate is in the hands of a receiver who lets it out
in ijara for terms, and the ijaradar in his turn also sub-lets it in darijara for similar terms, that although there was abundant evidence in the shape of
contested decrees, etc., for rent showing that the rent of the holding was Rs. 38-6-6 the darijaradar who preceded the plaintiffs in collusion with
the defendants got the rent of the holding to be recorded in the settlement khatian as Rs. 26 and also collusively got a decree for rent passed for
the years 1325 and 1326 B.S. at that, rate, that the receiver being ignorant of the real facts took the said rent as recorded in the khatian to be real
rent and on the footing of that entry instituted proceedings u/s 105, Ben. Ten. Act, and an order was passed by the Assistant Settlement Officer in
the said proceedings allowing enhancement at the rate of 2 annas 3 pies in the rupee and thus the rental was enhanced from Rs. 26 to Rs 29-10-6,
the said enhancement to take effect from 1328. Being of opinion that the decision of the Assistant Settlemerit Officer was vitiated by fraud and
collusion the learned Subordinate Judge decreed suit at the real rate, namely, of Rs. 38-6-6.
3. The contentions urged in support of the appeal are that there was no duty cast upon the defendants to bring the real rate of rent to the notice of
the Assistant Settlement Officer who dealt with the proceedings u/s 105, Ben. Ten. Act, and there was no fraud or collusion in those proceedings,
that the decision u/s 105, Ben. Ten. Act cannot be challenged collaterally in the present suit for rent and that effect must be given to the said
decision as contemplated by Section 107, Ben. Ten. Act.
4. Reading the decision of the Assistant Settlement Officer u/s 105, Ben. Ten. Act, it appears that the question as to what was the then existing rent
of the holding was never put in issue before him, but that all that was decided by him was what the rate of enhancement should be. Quite apart
from any question of fraud or collusion the decision u/s 105, therefore, will not operate as a bar to the investigation of the question as to what was
the rate of rent at the date of the khatian for no such question was raised or decided in the proceedings u/s 105 Nawab Bahadur of Murshidabad
v. Ahmad Hossain [1917] 44 Cal. 783 and Srimati Priyambada Debi Vs. Priya Nath Banerjee and Others, : . The present suit being one in which
the plaintiffs have asked for a decree at the old rate of rent, and they having succeeded in establishing by evidence notably, contested decree for
rent previously obtained against the defendants which in the opinions of both the Courts below was sufficient and satisfactory what that rent was
and in thus proving that the entry in the khatian was incorrect the decision u/s 105 cannot stand in the way of their getting a decree at the correct
rate. This conclusion, in my opinion, is sufficient for the disposal of the appeal.
5. I shall now turn to the line of reasoning upon which the learned Subordinate Judge has proceeded and deal with the grounds upon which that
reasoning has been assailed. In the proceedings u/s 105, Ben. Ten. Act, there may not have been a duty cast upon the defendants to tell the
Assistant Settlement Officer what the real rent of the holding was when the receiver had asked that officer to proceed on the footing of the rent as
recorded in the khatian but it is clear beyond doubt that the collusion between the outgoing dar-ijaradar and the defendants which was productive
of the erroneous entry in the khatian had also for its object the perpetration of a fraud, the laying in of a trap in which the defendants'' opponent,
whoever it may happen to be, would fall and by keeping the opponent as well as the Court in ignorance of the real facts by means of a mediated
contrivance secure to the defendants an unfair advantage which would bring about an erroneous decision when the question would arise as to what
the real rent was. This sort of collusion and fraud is quite different from mere production of perjured evidence and satisfies the requirements of the
decision in the case of Nanda Kumar v. Ramjiban [1914] 41 Cal. 990 and is, in my opinion, sufficient to vitiate the order of the Court that is
procured thereby. When a subsisting judgment, order or decree is set up by one party as a bar to the claim of the other party, it is not necessary
for the latter to bring a separate suit to have the same set aside but it is open to him in the same suit in which it is sought to be used against him to
show that it was obtained by fraud or collusion. Rajib Panda v. Lekhan Sendh [1900] 27 Cal. 11 Nistarini Dassi v. Nundo Lall Bose [1899] 26
Cal. 591 Aswini Kumar Samuddar v. Banamali. Chakrabarty 21 C.W.N. 594 Bansi Lal v. Dhapo [1902] 24 All. 242 and Rangnath Sakharam v.
Govind Narasivu [1904] 28 Bom. 639. That the same principle is applicable to decisions of Settlement Courts has been held in the case of Hare
Krishna Sen v. Umesh Chandra Butt AIR 1921 Pat. L.J. 193. The case of (Hazi Munshi) Fazlu-uddin Mohammad Vs. Khetra Ghorai and Others,
: and the line of cases upon which it proceeds is entirely distinguishable from the present case because the plaintiff in this case was not a party or
privy to the settlement proceedings, and he has acquired from the receiver who was a party to the decision u/s 105, Ben. Ten. Act, not the right to
realise the particular rent of the holding. Once collusion and fraud is established the decision loses all its force and effect which otherwise it would
have of a decree of a civil Court and the finality that Section 107, Ban. Ten. Act, attaches to it. The appellant''s contentions, therefore, are not well
founded.
6. The appeal fails and is accordingly dismissed with costs.