THAKUR DAYAL RAI Vs. BHAGWAT RAI

JUDGEMENT

(1.) THE plaintiff, who is a lessee from one Hem Karan Gir, a tenant holding at fixed rates, brought the suit out of which this appeal has arisen against the defendant, who is a sub-tenant, to recover arrears of rent. THE Court of first instance decreed the claim in part, but the lower appellate Court has dismissed it on the ground that having regard to the provisions of Section 34 Clause (5) of Act III of 1901, the suit could not be entertained as the plaintiff had not got his name recorded as the lessee of Hem Karan Gir. THE lease, under which the plaintiff claims title, is dated the 6 of March 1900 and came into operation and the plaintiff obtained possession under it before Act III of 1901 came into force. Clause (5) of Section 34 is a new provision and did not exist in the old Act. It cannot, therefore, have retrospective effect. As the plaintiff's lease was of a date prior to that on which the new Act came into force and it had taken effect before the new Act was enforced, the plaintiff's right cannot be affected by the provisions of Clause (5) of Section 34. This view was held in Chajmal Das V/s. Sirya 3 A.L.J. 625 : A.W.N. (1903) 234. THE lower Court was, therefore, wrong in holding that Clause (5) of Section 34 applied and the suit was not maintainable. I accordingly allow the appeal, set aside the decree of the Court below and remand the case to that Court under Order XLI, Rule 23 of the Civil P. C. with directions to re-admit it under its original number in the register and dispose of it on the merits. THE appellant will have his costs of this appeal. Other costs will abide the event.