BENGARAM CHANGA Vs. BEJOY GOVINDA ROY

JUDGEMENT

(1.) This appeal arises out of a suit for rent. The plaintiffs sued the defendants for rent of a certain parcel of land for the years 1325 to 1327. The rent claimed was at the rate of Rs. 14- 14-6 per annum. The defence was that the area now was 6 pakhis and that there had been diminution of the area of the tenancy and hence the defendants were entitled to an abatement of rent. The first Court gave effect to this contention of the defendants and held that there had been decrease in the area and gave a decree for a proportionate amount of rent.

(2.) The plaintiffs appealed to the District Court and before the District Court it was argued first that the question of any abatement of rent to be allowed for decrease in the area was res judicata between the parties and secondly that Section 109 of the Bengal Tenancy Act was a bar to this question of abatement of rent being considered in the present rent suit. The lower Appellate Court decided this question of res judicata against the appellant and held that this question as to whether any abatement was allowable to the defendants was not res judicata. But he held that the defence of the defendants that there had been a diminution of area and for that reason they were entitled to abatement of rent was barred by Section 109 of the Bengal Tenancy Act.

(3.) The defendants have appealed to this Court and in appeal the learned Vakil for the defendants-appellants contend that Section 103 of the Bengal Tenancy Act is not a bar to the present proceedings. The facts so far as this question is concerned are these: During the settlement operation the landlords first of all applied under Section 105 on the 25 October 1915 for an enhancement of rent of the suit land. This application, however, was withdrawn. Defendant No. 2 then applied for an abatement of rent on the ground that there had been a decrease in area. One of the landlords who was impleaded was dead and as the result of this the application was dismissed. When the suit was tried the defendants took the defence that there had been a decrease in area. The learned-Subordinate Judge held that this defence must be deemed to be an application for reduction of rent and hence Section 109 of the Bengal Tenancy Act was a bar to its being raised in any subsequent proceedings. Section 109 provides that "subject to the provisions of Section 103-A, 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 Secs.105 to 103 both inclusive." I do not think that the defence taken by the defendants in the suit can be considered as either an application or a suit. Therefore Section 100 is no bar to the defendants contending that there had been a decrease in area and hence they were entitled to an abatement of rent even though they had brought forward the same contention in the proceedings under Section 105 of the Bengal Tenancy Act. This point is decided in favour of the appellants.